Uttarakhand High Court
Heera Singh Pangtey And Others ... vs State Of Uttarakhand And Others on 4 March, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2364 of 2015
Heera Singh Pangtey and others .....Petitioners
Versus
State of Uttarakhand and others .... Respondents
Present :-
Mr. T.A. Khan, Senior Advocate, assisted by Mr. Ravi Shankar Kandpal, Advocate, for
the petitioners.
Mr. V.D. Bisen, Brief Holder, for the State of Uttarakhand.
Mr. Rakesh Thapliyal, Assistant Solicitor General, assisted by Mr. Pankaj Chaturvedi and
Mr. Lalit Sharma, Standing Counsel, for the Union of India.
Date of Reserved : 05.10.2021
Date of Judgment : 04.03.2022
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
Floreat Alma Mater, our Great Nation India.
2. The aforesaid reference has a relevance in the
context of the issue involved, and the relevance of a Country
for each and every citizen, who resides in it. The reference of
the term "Alma Mater" in its literal and contextual meaning
would mean a "generous Mother" and that is why our
Country is the only country in the World, which is referred as
to be the "Motherland". If the two references of the word
"Alma Mater" is preceded with the word used as "floreat",
that too has a reference denoting to the flourishment of the
country and to its long life, which would be of a contextual
perennial importance, while dealing with the issue raised by
the petitioners.
3. The issue involved in the present Writ Petition is
of a grave national concern, pertaining to regulating the
frontier borders of the country, adjoining to the 'Line of
Actual Control', which adjoins and shares the boundary
lines of our neighbouring country, China, which is
approximately about 20 to 25 Kms. only away from the land,
in dispute, which is proposed to be acquired for the purposes
of meeting out the defence need of the ITBPF, i.e. Indo
Tibetan Border Police Force (hereinafter to be referred as
I.T.B.P.).
4. The issue would be, as to whether despite of there
being certain limited statutory protection; having being
granted to a specified class of reserved community, i.e. the
Scheduled Tribes, whether their personal rights, if it is, at all
prevailing under law, would prevail over the right and
interest of the nation, i.e. our Motherland, particularly, when
it calls for defending the critical and strategic border of our
Nation, in order to have preparedness, to meet any
unprecedented insurgencies or army aggression, by the
neighbouring county China.
5. The petitioners to the present Writ Petition,
contend and claim themselves to be the resident of Village
"Milam", Tehsil Munsiyari, District Pithoragarh, which is
located at a high altitude, in the higher laps of the Himalayas,
approximately about 12,000 to 13,000 feets, in height above
sea level. The said village "Milam", where the land in
dispute is situated and which is proposed to be acquired for
defence purposes, is only approximately about 20 to 25 Kms.
away from the bordering frontier, i.e. Line of Actual Control,
between India and China, and strategically, it is of a grave
military importance, for the defence of the country.
6. The petitioners have come up with the case, and
they have raised a claim, that they are the residents of the
said village, who yet again contend and claim to belong to a
scheduled tribes, as it has been classified under Article 342 of
the Constitution of India and are included as "Tribes", as it
has been specified under U.P. Scheduled Tribes U.P. Order
of 1967. The petitioners contend, that the land, in question,
which lies in the aforesaid Village is located in Khasra Nos.
1417, 1416, 1419, 1397, 1409, 1410 and 1411. The
petitioner No.3, has contended, that as far as the aforesaid
land described above is concerned, it is allegedly shown to
have been recorded in the revenue records in the name of
petitioner No.3.
7. On the other hand, the late petitioner No.1, who
was later on; substituted by the petitioners Nos. 1/1 to 1/5,
have similarly claimed their ownership over Khasra No. 1370
and 1371 of Village Milam and they have claimed and
contended, that they too stood recorded in the revenue
records, from the time of their predecessors. Late Mr.
Mahiman Singh, father of petitioner No.2, and they have
also claimed, that they have their rights over part of the
unidentified land lying in khasra No. 1421 and 1417 of the
same village.
8. Similarly, petitioner No. 4, had also claimed and
contended, that he is the owner in possession of the land
recorded in khasra Nos. 1470 and 1408, which has been
placed on record by petitioner No.4, in order to substantiate
his claim over the land, in question. The petitioners
contended, that the aforesaid land since being located at a
higher altitude of the Himalayas, for most of the period of the
year approximately for about six months, it is covered by
snow and hardly any agricultural activities are admittedly
being carried by them over the land, in question, except for
few chosen months of the year during the summer. The
petitioners' admitted case is that the aforesaid land thus
recorded is exclusively shown as to be an "agricultural
land" and "no abadi" as such exits on any part of the land in
question.
9. The petitioner in the Writ Petition, admittedly,
had come up with the case that the land, which are the subject
matter of acquisition, as contained in the Schedule of the
Notification issued under Section 11 (1) of the Act of 2013,
is an 'agricultural land', and admittedly, it is not being or was
ever being utilised as an "Abadi", as defined under the
Revenue Law. The term "agricultural land" has not been
defined under the provisions of the U.P. Zamindari Abolition
and Land Reforms Act, rather it defines the term 'land',
which is inclusive of an activity of agriculture. Hence, the
land and its utility is exclusively limited for agricultural
purposes, in the context of the Revenue Law, and even as per
opinion of this Court, it would mean a continuous and a
persistent agricultural activity to be carried in order to protect
the right of tilling of soil by an occupant or an owner of the
agricultural property.
10. The petitioners contended that since they
belonged to a Scheduled Tribes i.e. "Bhotia", which in itself
is a class of Tribes protected by the Constitution of India, as
well as, under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter to
be called as Act of 2013), their land ought not to have been
acquired, even for the purposes of meeting out the
requirement of the defence personnel, as because of their self
acclaimed immunity, which they have claimed to have vested
in them, in the light of the provisions contained under Section
40 to be read with Section 41 of the Act of 2013.
11. Simultaneously, they have also sought a
protection on the basis of the U.P. Scheduled Tribes Order, as
it was then notified in 1967; because "Bhotia Tribes", have
been included in the said list of Scheduled Tribes, provided
in the Schedule of 1967.
12. The petitioners have contended that apart from the
fact, that they stand recorded in the revenue records and that
they had been in possession of the land since 1880, and they
have also claimed that in accordance with, and with the
enforcement of the provisions of the U.P. Zamindari and
Land Reforms Act / KUJA Act, they have acquired the status
of being a "bhumidhar" of the land, which is claimed to be
belonging to them, since they claim that the respective
parcels of land stood "vested" with them with the
enforcement of U.P. Z.A. & L.R. Act.
13. It is known to all, that the Line of Actual
Control, which regulates and lays down the demarcation line
of the frontier borders of our Great motherland, with the
neighbouring country China, is strategically of a very prime
importance, from the perspective of the defence of the
country, and particularly, in an eventuality of any
unpredictable and unforeseen enemy military action, if it is
required to be retaliated and taken by us, or if it is taken
against our Country, to meet the defence need of the country
and that too, where our armed forces have to defend the
country in a higher altitude warfare, there are various
statistical, strategical and technical issues, which are required
to be technically considered by skilled defence personnels,
from the perspective of the military requirement, while
choosing an appropriate parcel of land, which could best suit
the need; for the purposes of providing the adequate and
effective military installations for Para Military Forces or for
Military Forces; particularly, for construction of bunkers or
installation of the ammunition and a long distance firing
devices, which may be conveniently handled and made
operational at higher altitude, and the said technical
assessment of the military requirement, could and could only
be falling for its assessment within the exclusive domain of
its assessment, to be made by the competent military
officials, and because, since it is rather, based on the said
perspective and the strategic location of the land, as already
described and detailed above, the competent authorities,
while exercising their powers under Chapter-II of the Act of
2013, i.e. the determination of the "social impact
assessment" and the "public purposes", after undertaking
the said process and the assessment procedure, which were
required under law, had resolved to acquire the land as
aforesaid by issuance of a Notification, which is impugned in
the Writ Petition, being Notification No. 800/XVII-5/15-13
(5) Ardh Sanik/2015 dated 1st August, 2015, whereby, the
Chief Secretary, to the State of Uttarakhand, Department of
Army Welfare, had with the prior consent of His Highness,
the Governor of the State, had issued the notification under
Section 11 (1) of Act of 2013, proposing to acquire the said
land, lying in Malla Johar, Mauza Milam, District
Pithoragarh, and on a simplicitor reading of the intention and
the purpose of the notification for acquisition of land, it had
been clearly and apparently spelt out therein, that the sole and
solitary purposes of the acquiring of the land, was to meet the
defence requirements of the country, looking to its strategic
location, and particularly because of the consistent military
insurgencies and across the border line firing, which this
great country of ours, has been recently facing, the apparent
threats of an army aggression by the adjoining neighbouring
country China and that is why, the object for acquisition has
been deciphered in the notification itself, the relevant part of
which, is extracted hereunder :-
"jkT;iky Hkwfe vtZu] iquokZl vkSj iquO;ZoLFkkiu esa mfpr
izfrdj vkSj ikjnf"kZrk vf/kdkj vf/kfu;e] 2013 ¼vf/kfu;e la[;k
30 lu~ 2013½ dh /kkjk 11 dh mi/kkjk ¼1½ }kjk iznRr "kfDr;ksa dk
iz;ksx djds loZ lk/kkj.k dh lwpuk ds fy;s vf/klwfpr djrs gSa fd
mudk lek/kku gks x;k gS fd fuEufyf[kr vuqlwph esa mfYyf[kr Hkwfe
dh yksd iz;kstu vFkkZr ftyk fiFkkSjkx<+ ds xzke feye] ijxuk
tkSgkj] rglhy equL;kjh esa 14 oha okfguh Hkk0fr0lh0iq0 cy] dh
vfxze pkSdh eq[;ky; dh LFkkiuk gsrq xzke feye dh 2-4980 gS] Hkwfe
dh vko";drk gSA
Pkwafd /kkjk 40 ds v/khu vkR;kf;drk micU/kksa dk voyEc ysrs
gq, mDr vf/kfu;e] 2013 dh /kkjk 9 ds vuqlkj leqfpr ljdkj esa
lkekftd lek?kkr fu/kkZj.k v/;;u djkus ls NwV iznku djus dh
"kfDr nh x;h gSA vr,o vc jkT;iky dh ;g jk; gS fd ;g ekeyk
vR;ko";drk gS] blfy, mDr vf/kfu;e dh /kkjk 11 dh mi/kkjk ¼1½
ds v/khu funsZ"k nsrs gSa] fd ;|fi /kkjk 40 ds v/khu dksbZ
vfHkfu.kZ;@vkns"k ugha fn;k x;k gS rFkkfi jkT;iky mDr yksd
iz;kstu ds fy, /kkjk 40 dh mi/kkjk ¼1½ esa fufnZ'V ?kks'k.kk ds lkFk
fuEufyf[kr vuqlp
w h esa mfYyf[kr Hkwfe dh mDr vf/kfu;e dh /kkjk
11 dh mi/kkjk ¼1½ ds vuqlkj foKfIr vf/klwfpr dh tkrh gS%&"
14. What would be relevant to observe at this juncture
only is that if the purpose of acquisition, which has been
shown in the impugned Notification of 1st August, 2015,
itself is taken into consideration, it is exclusively intended to
meet the emergent need, for the purposes of establishment of
the frontier chauki, i.e. Border Out Post (in short BOP), in
Village Milam for the 14th Wing of ITBP. While taking an
action for acquiring the land; under Section 11 of Act of
2013, it was specifically observed that the Government and
its Social Welfare Department, had conducted a detailed
survey as per Chapter II, Section 4 of Act of 2013, and also
for the purposes of the exemption, to be provided, for the
land to be acquired to meet the urgent need of the defence
forces of the country, for the defence of the country, in the
light of the provisions or stipulation as it has been contained
under Section 40 of the Act, which provide with ample of
power to the Government, as it has been provided under
Section 9 of the Act of 2013, for an exemption, from the
implications of Section 40 of Act of 2013, in order to
completely eradicate the necessity of "social impact
assessment", in relation to the land, which is proposed to be
acquired to meet the military or the defence requirement,
when it comes to an issue of defence of the Country, which is
supreme and above all the legal or personal rights, which are
exempted under Section 9 of the Act, which relates to the
exemption clauses contemplated under Section 2 (1) (a) and
Section 9 of the Act of 2013, which are extracted
hereunder:-
"Section 2. Application of Act.-(1) The
provisions of this Act relating to land acquisition,
compensation, rehabilitation and resettlement, shall
apply, when the appropriate Government acquires land
for its own use, hold and control, including for Public
Sector Undertakings and for public purpose, and shall
include the following purposes, namely:--
(a) for strategic purposes relating to naval,
military, air force, and armed forces of the Union,
including central paramilitary forces or any work
vital to national security or defence of India or State
police, safety of the people; or
........
Section 9. Exemption from Social Impact
Assessment.-Where land is proposed to be acquired
invoking the urgency provisions under section 40, the
appropriate Government may exempt undertaking of
the Social Impact Assessment study."
15. Reverting back to the intention and object of the
acquisition, if that is exclusively taken into consideration, in
fact, the State Government, while issuing the notification on
01.08.2015, under sub-section (1) of Section 11 of the Act of
2013, had appropriately taken into consideration, the
implications of Section 9 of the Act of 2013, to be read with
Section 40, of the Act of 2013, for the purposes of issuing the
notification of acquisition of land, under Section 11 (1) of the
Act, proposing to acquire the land for the purposes of
establishment of the frontier chaukies in the adjoining border
area of the country, which is near to, the "Line of Actual
Control" and which is of a very strategic military requirement
for the purposes of 'National Security', and hence, it cannot
be said, that the need of acquisition as stipulated by the
impugned notification of 1st August, 2015, was at all or could
have been at all, in non-compliance of the provisions
contained under Section 40 (1) (2) of the Act, to be read with
Section 9 of the Act of 2013, as it has been argued by the
counsel for the petitioners.
16. The petitioners in the Writ Petition have primarily
put a challenge to the aforesaid Notification of 1st August,
2015, on the principle ground, that it happens to be in
violation of Section 40 of the Act, as 30 days' notice
provided therein, after the publication of notices under
Section 21 of the Act, for taking possession of the land was
mandatorily needed to be issued; even if it was to be acquired
for the public purposes, that was not complied with.
17. In order to make a reference and to effectively
answer to the aforesaid contention of the petitioners'
Counsel, with regard to the implications of Section 21, to be
read with Section 40 of the Act of 2013, in fact, their
argument, itself has been answered in the object of the
notification of acquisition, I am of the view, that once the
State Government has exercised its powers, as it has been
provided under the exemption clause provided under Section
9 of the Act of 2013, in that eventuality, the 'social impact
assessment', which is otherwise protected by the provisions
contained under Chapter-II of the Act of 2013, has had to be
exempted, to be made applicable in relation to the stipulation
and intention of acquisition provided under Section 40 of the
Act of 2013, and for providing for a 30 days' notice by way
of publication in compliance of the provisions contained
under Section 21.
18. Apart from it, if sub-section (2) of Section 40 of
the Act of 2013, if that is taken into consideration, that itself
carves out an exemption from the strict compliance of the
provisions of sub-section (1) of Section 40, of the Act of
2013, where the appropriate Government as defined under
sub-section (e) of Section 3 of the Act of 2013, when it
comes to conclusion, that the need of emergent acquisition is
for the purposes covered by sub-section (2) of Section 40 and
also when its implication, has a direct impact and nexus with
the purposes of the application of Act, as provided under sub-
clause (a) of sub-section (1) of Section 2 of Act of 2013. I
am of the view that the defence purposes of the country
acquires the drivers seat, and would be predominantly
overriding all the restrictive intentions of the Act of 2013,
since being contrary to the constitutional intention, for
protection of individual rights or even for a right of a
class of Society, because this Court is of the view that no
individual rights or even for that matter even public
rights, can be at any moment be taken to be the superior
rights, than to the right of defence of the Country,
because of which, we all citizens are thriving peacefully,
because our frontiers areas of the Country, are in the safe
hands of our gallant army and para military personnels.
That is what has been even intended by the preamble of
the Constitution of India.
19. In that eventuality and context, the reference of
Section 21 and Section 40 of the Act of 2013, becomes
relevant to be extracted hereunder; because under the given
set of circumstances, particularly when the notification is in
the light of Section 9 of the Act of 2013, and particularly,
when it dilutes the implications of Section 21 and Section 40
of the Act of 2013, and quite logically also too, when the
land is proposed to be acquired is apparently and exclusively
for the defence of the country and for the establishment of the
frontier chaukies of the para military forces for defending our
Motherland from the adjoining enemies country. Section 21
and 40 of the Act of 2013, are extracted hereunder:-
"21. Notice to persons interested.-(1) The
Collector shall publish the public notice on his website
and cause public notice to be given at convenient places
on or near the land to be taken, stating that the
Government intends to take possession of the land, and
that claims to compensations and rehabilitation and
resettlement for all interests in such land may be made
to him.
(2) The public notice referred to in sub-section (1)
shall state the particulars of the land so needed, and
require all persons interested in the land to appear
personally or by agent or advocate before the Collector
at a time and place mentioned in the public notice not
being less than thirty days and not more than six
months 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 such interests, their claims to
rehabilitation and resettlement along with their
objections, if any, to the measurements made under
section 20.
(3) The Collector may in any case require such
statement referred to in sub-section (2) to be made in
writing and signed by the party or his agent.
(4) 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, 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 situated.
(5) In case any person so interested resides
elsewhere, and has no such agent, the Collector shall
ensure that the notice shall be sent to him by post in
letter addressed to him at his last known residence,
address of place or business and also publish the same
in at least two national daily newspapers and also on his
website.
40. Special powers in case of urgency to acquire
land in certain cases.-(1) In cases of urgency, whenever
the appropriate Government so directs, the Collector,
though no such award has been made, may, on the
expiration of thirty days from the publication of the notice
mentioned in section 21, take possession of any land
needed for a public purpose and such land shall thereupon
vest absolutely in the Government, free from all
encumbrances.
(2) The powers of the appropriate Government
under sub-section (1) shall be restricted to the minimum
area required for the defence of India or national
security or for any emergencies arising out of natural
calamities or any other emergency with the approval of
Parliament:
Provided that the Collector shall not take
possession of any building or part of a building under this
sub-section without giving to the occupier thereof at least
forty-eight hours notice of his intention to do so, or such
longer notice as may be reasonably sufficient to enable
such occupier to remove his movable property from such
building without unnecessary inconvenience.
(3) Before taking possession of any land under
sub-section (1) or sub-section (2), the Collector shall
tender payment of eighty per cent. of the compensation for
such land as estimated by him to the person interested
entitled thereto.
(4) In the case of any land to which, in the opinion
of the appropriate Government, the provisions of sub-
section (1), sub-section (2) or sub-section (3) are
applicable, the appropriate Government may direct that
any or all of the provisions of Chapter II to Chapter VI
shall not apply, and, if it does so direct, a declaration may
be made under section in respect of the land at any time
after the date of the publication of the preliminary
notification under sub-section (1) of section 11.
(5) An additional compensation of seventy-five
per cent. of the total compensation as determined under
section 27, shall be paid by the Collector in respect of land
and property for acquisition of which proceedings have
been initiated under sub-section (1) of this section:
Provided that no additional compensation will be
required to be paid in case the project is one that affects
the sovereignty and integrity of India, the security and
strategic interests of the State or relations with foreign
States."
20. The petitioners have submitted, that the
Notification of 1st August, 2015, suffers from yet another
discrepancy, that after the publication of the notification
under Section 11 and after the lapse; of the stage of the
proceedings of social impact assessment, it later involved the
hearing of objections, as it has been provided under Section
15 of the Act of 2013, was not complied with was not
provided to them, and hence, that itself would mitigate the
entire acquisition proceedings. As far as the bearing of
Section 15 is concerned to the acquisition process, it needs no
reference, that in an exceptional exercise of power, which
could be, and it had been left open for the State, to be
exercised by the State Government, to acquire a land even
without hearing the objections, it is to be exercised in
circumspection, which gives a very limited power to the land
owners to protect their personal rights and at the costs and
risk of the public rights or the public interest, and that too
when it relates to the nation, and particularly, the public
interest, when it leads to an extent of augmentation of the
defence of the nation. The hearing of objection, which had
been that too when it is limited to the areas of objection,
provided under sub-section (1) of Section 15 of the Act of
2013. The areas of objection which had been left open and
limited for hearing under Section 15 of the Act of 2013, are
as under :-
"15. Hearing of objections.-(1) Any person
interested in any land which has been notified under
sub-section (1) of section 11, as being required or likely
to be required for a public purpose, may within sixty
days from the date of the publication of the preliminary
notification, object to -
(a) the area and suitability of land proposed to be
acquired;
(b) justification offered for public purpose;
(c) the findings of the Social Impact Assessment
report."
21. This Court is of the opinion, that the area of
hearing of objections, under the different heads, which had
been provided therein under Section 15 of the Act of 2013,
will not be attracted or have its applicability, because the
purpose herein as expressed in the notification of 08.08.2015,
was for establishment of Border Out Post, adjoining to the
Line of Actual Control, would not be an aspect, which at all
could be left open for speculations and assessment by the
executive or administrative authorities, because it could be
best and with utmost perfection be only scrutinized by the
defence forces authorities, to suit their need of deployment of
armed personnel or establishment of their border out posts,
which cannot be left open to be assessed by the executive,
and as per opinion of this Court, the need of defence of the
nation, nearing the frontier borders of adjoining country
China, particularly looking to its topographical and climatic
restrictions, it cannot be doubted that the proposed
acquisition is not for the public purpose and for the purpose
of the country. Coming to the impact of third clause (c) of
Section 15 of the Act, it will have no application in the
circumstances of the instant case, due to the implications of
Section 2 (1) (a) to be read with Section 9 of the Act of 2013,
already dealt earlier, which had exempted the applicability of
Section 40 of the Act of 2013.
22. While elaborating on the issue, which has been
only and exclusively argued by the learned counsel for the
petitioner, with regard to the impact of non-compliance of
Section 15, of hearing of the objections and with regard to
the issuance of notice under Section 21, to be given to the
interested persons. In fact, if the necessity of compliance of
Section 21, itself is taken into consideration, rather Section
21, it forms to be part and parcel of the provisions contained
under Section 40 (1), which deals with the aspect of
providing of a notice; by way of publication of the notices in
the newspapers, which in the instant case, was resorted to by
the respondents by issuing a publication in "Dainik Jagran"
on 27th August 2015. But, the allegation of non compliance
of Sections 15 and 21 of the Act of 2013 is concerned, this
Court is of the view that it is not independent in its
application, as per the provisions of the Act itself,
particularly, because of the intention provided under the
Statement of Reason (SOR) of the Act of 2013, if that is
taken into consideration, particularly, when it deals with the
aspect of the "public purpose", it has been comprehensively
defined, so that the Government intervention in acquiring the
land may be limited to the defence need of the Country, to
ensure the consent of at least of the affected families, but
acquisition under an urgency clause had also been limited in
its applicability for the purposes of National defence, security
purposes, natural calamities, etc. which are the exceptions
under the Act itself, and that is why, the definition of the
"public purposes", as given in the Act, though it is very wide
enough in its application, where it entails infrastructural
acquisition to meet the public purposes, but as per my view
too, it would not be inclusive of the need of the defence of
the country.
23. This aspect of the matter also stands affirmed and
supported by the provisions contained under Section 2 (1) (a)
of the Act of 2013, where an exception has already been
carved out, with regard to meeting the requirement of
military or paramilitary forces for any work; which is vital
for the national security or the defence of India. In the light
of the provisions contained under Section 2 (1) (a), if the
legislative purpose of Section 9 is taken into consideration,
which has already been dealt with above, the applicability of
Section 40 itself has been exempted to be made applicable,
which in itself eradicate the application of the social impact
assessment, and once if Section 9 of the Act of 2013, is
taken into consideration; the urgency provision under Section
40 of the Act of 2013, has exempted the assessment of social
impact assessment, and if reference is made to sub-Section
(1) of Section 40, it provides a 30 days' notice from the date
of publication of notice under Section 21 and in that
eventually, when Section 40, itself covers the impact of
Section 21, which had been overridden by applying Section
9 of the Act of 2013, which has been exempted to be made
applicable by the provisions contained under Section 9 of the
Act of 2013, the argument of the learned counsel for the
petitioners of non-compliance of the provisions contained
under Section 21 or Section 40 of the Act, becomes
irrelevant for consideration in the circumstances of the
present case.
24. The necessity of the defence of the country
though has been indirectly considered in one of the recent
judgement, which has been rendered by the Hon'ble Apex
Court in Civil Appeal No. 10930 of 2018, Citizens for
Green Doons and others Vs. Union of India and others, as
decided by the Hon'ble Apex Court, while passing a
judgement on 14th December 2021, in Miscellaneous
Application No. 1925 of 2020, filed in the said Civil Appeal,
though the text of the controversy in the said case was
pertaining to the construction of "Char Dham Yatra", road in
the State of Uttarakhand. The relevant part of the aforesaid
judgement, with which we would be more concerned, would
be pertaining to the aspect of the defence requirement and
particularly, the area with which the present Notification is
concerned i.e. District Pithoragarh, which shares the
international boundary with China. Hence, while assessing its
topographical and environmental impact and issues related to
it, while dealing with and recording its finding in conclusion,
as well as in the analysis made by the Hon'ble Apex Court, in
the said judgement, it had been pointed out by His Lordships,
that construction of the roads and particularly, the Char
Dham Yatra road in the said matter, was all the more relevant
for the purposes of meeting the defence requirement, because
it adjoins the sensitive border areas of the country and in
reference thereto, the Hon'ble Apex Court in its para 45,
which is extracted hereunder has laid down and considered
the importance, as to why the strategic points, adjoining to
the international borders, would be tactically and strategically
relevant for the purposes of developing the infrastructural
facilities for meeting the need of the Army, which also acts
as a feeder road to the security of the nation. In fact, this
issue which is involved in the present Writ Petition, too
would also deal with the said genesis of the observations,
which had been made by the Hon'ble Apex Court in the said
judgement. Para 45 of the same is extracted hereunder :-
"The issue that arises for consideration is
regarding the road-width to be adopted for the three
strategic border roads, as indicated in MA No 2180 of
2020 filed by the MoD, namely: Rishikesh to Gangotri
(NH-94 and NH-108), Rishikesh to Mana (NH-58), and
Tanakpur to Pithoragarh (NH-125). Broadly
speaking, the appellants have argued that the present
road infrastructure is sufficient to meet the needs of the
Indian Army. Any further development, it has been
urged, must be balanced keeping in mind the fragility of
the Himalayas, the excessive damage caused to the
environment and the need to ensure disaster-resilient
roads. On the other hand, the UOI has stressed on the
necessity of developing these feeder roads, for the
security of the nation. Given the proximity of the roads
to the Indo- China border, and the necessity of free
movement for transport of trucks, machines, equipment
and personnel of the Indian Army, double lane
configuration must be allowed, according to the UOI.
To analyse the issue, we shall first advert to the
findings of the HPC."
25. The Hon'ble Apex Court in the said judgement
has recorded that the choice of the land for the purposes of
laying down of the roads, its widening though it deals with
the different aspect pertaining to the terrain classification,
geo metric design, design of the speed, sight distance or the
visibility, are the various aspects, which was dealt with by
Chapter-II of High Power Committee Report, which was
dealing with the construction of the Char Dham Yatra Road.
In para 52 by virtue of the majority view of the members of
the High Power Committee, it had resolved in its Para 52 (iii)
and (iv), about the vulnerability of the border roads and its
necessity for the sensitive area, adjoining to the line of actual
control, and hence, even as per the resolution of 2019 Indian
Road Congress Guidelines, it had laid down an emphasis of
providing and appropriate strategic border roads for military
and paramilitary forces. The relevant part of para 52 (iii) and
(iv) of the aforesaid Apex Court judgment is extracted
hereunder:-
"52.
.....
(iii) Some of the highways of the Project are
important feeder roads leading towards border areas.
The BRO has highlighted that the terrain in border
areas is in a snow bound region and feeder routes such
as Helong-Mana and Barethi-Gangotri must be double-
laned. Further, the roads beyond Joshimath and
Uttarkashi are operationally sensitive and fall within
100 kms of the Line of Actual Control. Single-lane
roads are closed during the winter season due to
accumulation of snow and hinder the movement of
logistics and medical aid to the Indian Army;
(iv) The 2019 IRC Guidelines also suggest that
strategic border roads for military and paramilitary
forces be not less than two lanes with paved shoulders;
and "
26. The Hon'ble Apex Court in the said judgement in
its para 60, while when it was dealing with regard to the
aspect of nearness and proximity of the international border,
as it was an issue dealt by the Ministry of Home Affairs and
the Ministry of Defence, in its conclusion pertaining to the
access of bordering areas from Pithoragarh to Lipu Lekh
Pass, which also falls to be in the patch of the segment of the
access to the Line of Actual Control, with which we are
concerned, for which, the land to be acquired under the
Notification, was also taken into consideration from the
prospect of the defence of the country. Hence, while
concluding the said necessity, the Hon'ble Apex Court in its
judgment of 14.12.2021, had observed regarding its necessity
in para 63, 64 and 65, which is also extracted hereunder:
"63. At the outset, therefore, we find that there
are no mala fides in MA No 2180 of 2020 filed by the
MoD. The allegation that the application filed by the
MoD seeks to re-litigate the matter or subvert the
previous order of this Court are unfounded inasmuch as
MoD, as the specialized body of the Government of
India, is entitled to decide on the operational
requirements of the Armed Forces. These requirements
include infrastructural support needed for facilitating
the movement of troops, equipment and machines. The
bona fides of the MoD are also evident from the fact
that the issue of security concerns was raised during
the discussions of the HPC and finds mention in the
HPC Report. Thus, the MoD has maintained the need
for double-laned roads to meet border security
concerns.
64 The appellants have referred to a statement
made by the Chief of the Army Staff in 2019 in a media
interview regarding the adequacy of infrastructure for
troop movement. We do not find it necessary to place
reliance on a statement made to the media, given the
consistent stand of the MoD during the deliberations of
the HPC and before this Court. The security concerns as
assessed by the MoD may change over time. The recent
past has thrown up serious challenges to national
security. The Armed Forces cannot be held down to a
statement made during a media interaction in 2019 as if
it were a decree writ in stone. Similarly, the appellants
have also raised a challenge to the 2020 MoRTH
Circular and have sought a direction that this circular be
revoked, on the ground that it recommends the DL-PS
standard without application of mind.
65 This Court, in its exercise of judicial review,
cannot second-guess the infrastructural needs of the
Armed Forces. The appellants would have this Court
hold that the need of the Army will be subserved better
by disaster resistant roads of a smaller dimension. The
submission of the appellants requires the Court to
override the modalities decided upon by the Army and
the MoD to safeguard the security of the nation's
borders (it is important to remember that the MoRTH
issued the 2020 MoRTH Circular based upon the
recommendations received from the MoD). The
submission of the appellants requires the Court to
interrogate the policy choice of the establishment which
is entrusted by law with the defence of the nation. This
is impermissible."
27. That the requirement and importance of an
accessible roads or accessible passage to the military
personnel, would very well fall to be within an exclusive
domain of consideration, which has to be effectively and
conclusively made by the Ministry of Defence and the
judicial review of the said military operational requirement of
the Armed Forces, cannot be made as a subject matter of
consideration by the Courts, as they are not equipped with the
acumen to deal with the infrastructural support need for
facilitating the movement of troops, equipment,
ammunitions, and heavy machines, which are exclusively the
concern of the Ministry of Defence and competent Army
Authorities. That is why, the specific observation has been
made in para 65 of the judgement, which has been extracted
above, that it is exclusively the policy choice of the defence
personnel and the Ministry of Defence to choose its
requirement, and the manner it could be best met with, and
particularly, while making reference to the decision of 2019,
taken by the Indian Road Congress Guidelines, particularly
that as contained under Clause 6.2.2 (8), strategic and border
road for military and paramilitary security forces, military
operations and movements, should be more emphasized upon
in order to secure the country's existence in itself and minor
deviation, on the delicate balance of environmental issue has
been diluted to be strictly construed and observed with the
observation, that those issues would not impede the
requirement of infrastructural development specifically in the
area of strategic national importance, which are crucial to the
security of the nation, adjoining the Line of Actual Control,
shared between India and China.
28. So far as the area pertaining to the border areas
being shared with the international borders, adjoining China,
the matter was dealt with by the Hon'ble Apex Court, from
the perspective of NH-125, which relates to District
Pithoragarh, with which, we are concerned. In the present
Writ Petition, where acquisition notification has been
challenged, the Hon'ble Apex Court has observed in para 79
of the judgment, that the access of road from Tanakpur to
Pithoragarh, would be of much more of military relevance
and of importance for the defence of the country, and minor
environmental issue, though certain checks and balance have
to be strategically maintained, but not with the compromise
to the issue of national security. Para 79 of the aforesaid
judgment of Hon'ble Apex Court, reads as under:
"79. The order of this Court dated 8
September 2020 clarified that the 2018 MoRTH
Circular will hold the field, regardless of whether works
on a highway had been completed or were ongoing. By
allowing the MA filed by the MoD for modification of
this order, we have permitted the widening of the
national highways from Rishikesh to Mana, Rishikesh
to Gangotri, and Tanakpur to Pithoragarh, which are
strategic feeder roads to border areas. To this extent, the
order dated 8 September 2020 will stand modified.
However, we grant liberty to the respondents to pursue
appropriate legal proceedings and seek reliefs in the
event that it is necessary to implement the DL-PS
standard for the entire Project."
29. Hence, I am of the view that the basic intention of
Section 15, for hearing of an objection, is exclusively
confined on the effect of social impact assessment report, as
envisaged under Chapter-II of Act of 2013, it does not
absolutely protect the rights of an individual, as if an
immunity has been given to the owner of the land
particularly, when it clouds the real urgency and relates to the
necessity of the defence of the country, which necessitates
the immediate possession of the land sought to be acquired,
for meeting the defence need of the army or para armed
forces. This exemption of elimination of an inquiry or
providing of an opportunity under Section 15 was an aspect,
which was considered by the Hon'ble Apex Court in the case
as reported in (2013) 3 SCC 764, Laxman Lal Vs. State of
Rajasthan, which had laid down the parameters for
elimination of an inquiry only in the deserving cases of real
urgency and as per the guidelines framed by the said
judgment, the relevant paragraphs of which is extracted
hereunder.
30. In the said case of Laxman Lal (Supra), the
preliminary issue, which was given challenge in it was to the
Notification of 1st September, 1980, which was then issued
under the then Land Acquisition Act, under Section 4, where
the subject land was needed for the public purposes for the
construction of the Bus Stand. As a consequence thereto, a
Notification under Section 6 was issued on 19th March,
1987, by which, the urgency clause under Section 17 was
invoked, dispensing with the necessity of enquiry, which was
contained and contemplated under Section 5 (A) of the said
Act.
31. In the said judgement of Laxman Lal (Supra),
Hon'ble Apex Court while dealing with the right of the State
to meet the public exigency from the context of the theory of
"eminent domain" has held, that it is always the right and
power, which is exclusively vested with the sovereign
domain of the state to exercise its exclusive power within the
ambit of its power of territorial sovereignty of acquiring the
land to meet the public need and eminent domain has been
held to be an attribute of the sovereignty and an essential
element of the sovereign government for protecting the
borders of the country, and hence, the theory of eminent
domain, falls within the ambit of public interest, general
welfare for the public and particularly in the context of the
present case, wherein exigency relates to the unforeseen
urgency or the land is required to be reserved for armed
personnels of Para Military Force, to dispel any probable
future or present enemy threats, for which, a prior
preparedness is also one of the important and vital aspects,
which has to be taken into consideration for the purposes of
taking over the land for the defence personnel. The relevant
observations had been made by the Hon'ble Apex Court in
the said authority with regard to the aforesaid theory of
"eminent domain" in para 15, 16 and 21 of the said
judgement, which is extracted hereunder:
"15. The statutory provisions of compulsory
acquisition contained in the 1953 Act are not materially
different from the 1894 Act. This Court has explained
the doctrine of eminent domain in series of cases.
Eminent domain is the right or power of a sovereign
state to appropriate the private property within the
territorial sovereignty to public uses or purposes. It is
an attribute of sovereignty and essential to the
sovereign government. The power of eminent domain,
being inherent in the government, is exercisable in
the public interest, general welfare and for public
purpose. The sovereign is entitled to reassert its
dominion over any portion of the soil of the state,
including private property without its owner's consent
provided that such assertion is on account of public
exigency and for public good.
16. Article 300-A of the Constitution mandates that:
"300-A. Persons not to be deprived of property
save by authority of law.--No person shall be deprived
of his property save by authority of law."
Though the right to property is no longer a
fundamental right but the constitutional protection
continues inasmuch as without the authority of law, a
person cannot be deprived of his property. Accordingly, if
the State intends to appropriate the private property
without the owners' consent by acting under the statutory
provisions for compulsory acquisition, the procedure
authorised by law has to be mandatorily and compulsorily
followed. The power of urgency which takes away the
right to file objections can only be exercised by the State
Government for such public purpose of real urgency
which cannot brook delay of few weeks or few months.
This Court as early as in 1964 said that the right to file
objections under Section 5-A is a substantial right when a
person's property is being threatened with acquisition;
such right cannot be taken away as if by a side wind
(Nandeshwar Prasad v. State of U.P.)
21. Anand Singh has been referred to in later cases,
one of such decisions is Radhy Shyam v. State of U.P.
wherein this Court in paras 77(v) to (ix) of the Report
stated as follows: (Radhy Shyam case, SCC p. 603)
"77. (v) Section 17(1) read with Section 17(4)
confers extraordinary power upon the State to acquire
private property without complying with the mandate of
Section 5-A. These provisions can be invoked only
when the purpose of acquisition cannot brook the delay
of even a few weeks or months. Therefore, before
excluding the application of Section 5-A, the authority
concerned must be fully satisfied that time of few
weeks or months likely to be taken in conducting
inquiry under Section 5-A will, in all probability,
frustrate the public purpose for which land is proposed
to be acquired.
(vi) The satisfaction of the Government on the issue
of urgency is subjective but is a condition precedent to
the exercise of power under Section 17(1) and the same
can be challenged on the ground that the purpose for
which the private property is sought to be acquired is
not a public purpose at all or that the exercise of power
is vitiated due to mala fides or that the authorities
concerned did not apply their mind to the relevant
factors and the records.
(vii) The exercise of power by the Government
under Section 17(1) does not necessarily result in
exclusion of Section 5-A of the Act in terms of which
any person interested in land can file objection and is
entitled to be heard in support of his objection. The use
of word 'may' in sub-section (4) of Section 17 makes it
clear that it merely enables the Government to direct
that the provisions of Section 5-A would not apply to
the cases covered under sub-section (1) or (2) of
Section 17. In other words, invoking of Section 17(4) is
not a necessary concomitant of the exercise of power
under Section 17(1).
(viii) The acquisition of land for residential,
commercial, industrial or institutional purposes can be
treated as an acquisition for public purposes within the
meaning of Section 4 but that, by itself, does not justify
the exercise of power by the Government under
Sections 17(1) and/or 17(4). The court can take judicial
notice of the fact that planning, execution and
implementation of the schemes relating to development
of residential, commercial, industrial or institutional
areas usually take few years. Therefore, the private
property cannot be acquired for such purpose by
invoking the urgency provision contained in Section
17(1). In any case, exclusion of the rule of audi alteram
partem embodied in Sections 5-A(1) and (2) is not at all
warranted in such matters.
(ix) If land is acquired for the benefit of private
persons, the court should view the invoking of Sections
17(1) and/or 17(4) with suspicion and carefully
scrutinise the relevant record before adjudicating upon
the legality of such acquisition.""
32. The said judgement in its para 21 has dealt with
the ratio propounded by the Hon'ble Apex Court in the
judgement reported in 2011 (5) SCC 553, Radhy Shyam Vs.
State of U.P., where it has been observed that the provisions
of urgency clause under Section 17 of the Land Acquisition
Act, dispensing with the enquiry contemplated under Section
5 (A) will fall to be within the domain of an extra ordinary
exercise of power with the State; to acquire a private
property, where delay cannot be brooked into so as to
frustrate a public purpose and particularly, when it is in the
context of the defence of the Nation.
33. This Court is of the view, that the rights which are
intended or aimed to be protected under Section 15 of the
Act of 2013, as envisaged, which is to be protected of a
private individual, is not an absolute right, which can be
enforced in a writ jurisdiction, at the cost of the rights of the
public or at the cost of the interest of the defence of the
nation, and the said elimination of hearing under Section 15,
could be very well resorted to under the given set of
circumstances and for reasons already given above could
only be treated to be only directive in nature and not
mandatory, as it happens to be in the instant case, though
here particularly under the facts involved in the instant case
when, the notification itself, when it attracts Section 9 of Act
of 2013, that itself mitigates the intensity and gravamen of
the application of Section 15, for acquiring the land to meet
the emergent defence need of the Country, which is supreme.
34. Another perspective, which, the petitioners have
attracted to argue, in order to put a challenge to the
Notification dated 01.08.2015, is from the view point of the
implications of Article 342 of the Constitution of India; to be
read with constitution Scheduled Tribes U.P. Order of 1967,
wherein "Bhotia" tribes have been claimed to have been
notified, as to be a Scheduled Tribe, as covered by Article
342 of the Constitution of India and hence, they would be
protected from acquiring of their land in view of the
stipulations provided under Section 41 of the Act of 2013.
Section 41 of the Act of 2013, is extracted hereunder:-
"41. Special provisions for Scheduled Castes
and Scheduled Tribes.-(1) As far as possible, no
acquisition of land shall be made in the Scheduled
Areas.
(2) Where such acquisition does take place it shall
be done only as a demonstrable last resort.
(3) In case of acquisition or alienation of any land
in the Scheduled Areas, the prior consent of the
concerned Gram Sabha or the Panchayats or the
autonomous District Councils, at the appropriate level
in Scheduled Areas under the Fifth Schedule to the
Constitution, as the case may be, shall be obtained, in
all cases of land acquisition in such areas, including
acquisition in case of urgency, before issue of a
notification under this Act, or any other Central Act or
a State Act for the time being in force:
Provided that the consent of the Panchayats or the
Autonomous Districts Councils shall be obtained in
cases where the Gram Sabha does not exist or has not
been constituted.
(4) In case of a project involving land acquisition
on behalf of a Requiring Body which involves
involuntary displacement of the Scheduled Castes or
the Scheduled Tribes families, a Development Plan
shall be prepared, in such form as may be prescribed,
laying down the details of procedure for settling land
rights due, but not settled and restoring titles of the
Scheduled Tribes as well as the Scheduled Castes on
the alienated land by undertaking a special drive
together with land acquisition.
(5) The Development Plan shall also contain a
programme for development of alternate fuel, fodder
and non-timber forest produce resources on non-forest
lands within a period of five years, sufficient to meet
the requirements of tribal communities as well as the
Scheduled Castes.
(6) In case of land being acquired from
members of the Scheduled Castes or the Scheduled
Tribes, at least one-third of the compensation
amount due shall be paid to the affected families
initially as first instalment and the rest shall be paid
after taking over of the possession of the land.
(7) The affected families of the Scheduled Tribes
shall be resettled preferably in the same Scheduled Area
in a compact block so that they can retain their ethnic,
linguistic and cultural identity.
(8) The resettlement areas predominantly
inhabited by the Scheduled Castes and the Scheduled
Tribes shall get land, to such extent as may be decided
by the appropriate Government free of cost for
community and social gatherings.
(9) Any alienation of tribal lands or lands
belonging to members of the Scheduled Castes in
disregard of the laws and regulations for the time being
in force shall be treated as null and void, and in the case
of acquisition of such lands, the rehabilitation and
resettlement benefits shall be made available to the
original tribal land owners or land owners belonging to
the Scheduled Castes.
(10) The affected Scheduled Tribes, other
traditional forest dwellers and the Scheduled Castes
having fishing rights in a river or pond or dam in the
affected area shall be given fishing rights in the
reservoir area of the irrigation or hydel projects.
(11) Where the affected families belonging to the
Scheduled Castes and the Scheduled Tribes are
relocated outside of the district, then, they shall be paid
an additional twenty-five per cent. rehabilitation and
resettlement benefits to which they are entitled in
monetary terms along with a onetime entitlement of
fifty thousand rupees."
35. On an overall reading of the aforesaid provisions
and the legislative intent of Section 41 of the Act of 2013, if
that is taken into consideration, it may not be ruled out that
the legislature, in its all wisdom and consciousness, in its
sub-section (1) where it intended to provide a certain shield
of protection to the Scheduled Tribes and Scheduled Caste,
had used the language 'as far as possible'. The use of this
term under sub-section (1) of Section 41, itself makes the
provisions of Section 41 and the protection granted
thereunder, as to be not an absolute right, which has been
created or which could be granted irrespective of emergent
circumstances to the prescribed caste or tribes, provided
therein particularly, when an acquisition is called for to be
undertaken in the scheduled areas, which according to the
petitioners' stand covered by the U.P. Order of 1967.
36. The learned counsel for the petitioners in the Writ
Petition had proclaimed their rights of immunity from
acquisition, since they had claimed to be belonging to a
Scheduled Tribes, and hence the protection was sought to be
attracted in the light of the provisions contained under
Section 41 of the Act. The provisions of Section 41 of the
Act, apart from the fact, that it is only directory in nature and
not mandatory because it starts with the word "as far as
possible" but then its applicability has been left open to be
applied only over the "scheduled area". The term "scheduled
area" has been defined itself under Section 3 (zd) which is
extracted hereunder :
"(zd) "Scheduled Areas" means the Scheduled
Areas as defined in section 2 of the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act,
1996 (40 of 1996)"
37. It means a scheduled area has had to be an area,
which has been declared, as such and defined under Section
2 of the provisions of Panchayats (Extension to the
Scheduled Areas) Act, 1996.
38. In fact, as per the writ records or pleadings raised
in the Writ Petition, except for a bald assertion, that since the
petitioners are Scheduled Tribes, they would be provided
with the shield under Section 41, which I have already
observed above, that it is directory in nature and not
mandatory when compared with nation's defence need. It
was all the more necessary for the learned counsel for the
petitioners; to have substantiated his arguments, which he has
not done so; by placing any material or argument on record,
as to how and in what manner, village Milam, where the
land, which is proposed and is sought to be acquired falls to
be within the ambit of the scheduled areas, as defined under
the Act. Hence the argument as extended by the learned
counsel for the petitioners, in the absence of the same being
substantiated and there being any material on record cannot
be accepted until and unless, the petitioner is able to establish
the fact, by placing on records the documents that village
Milam is or has been ever declared as a scheduled area, as
per the Act of 2013, and also as per the 5th Schedule of
Constitution of India, as framed under Article 244 (1), which
relates to the administration and control of the scheduled
areas, and the Scheduled Tribes. Part-C of the 5th Schedule of
the Constitution of India, deals with the "scheduled area",
as to be an area as the President may by an order declared to
be a "scheduled area", but this Court feels it to be extremely
difficult to appreciate the arguments of the petitioners'
Counsel in the absence of there being any credible material
being placed on the records by the petitioners to substantiate
their arguments, that the land falls to be in the scheduled
area, as provided under Section 3 (zd) of the Act of 2013, to
be read with Part-C of the Fifth Schedule of the
Constitution of India, hence the argument extended by the
learned counsel for the petitioners that Milam is a scheduled
area cannot be appreciated. The same is quoted hereunder :-
"PROVISIONS AS TO THE
ADMINISTRATION AND CONTROL OF SCHEDULED
AREAS AND SCHEDULED TRIBES.
............
6. Scheduled Areas.--(1) In this Constitution, the
expression "Scheduled Areas" means such areas as the
President may by order declare to be Scheduled Areas.
(2) The President may at any time by order --
(a) direct that the whole or any specified part of a
Scheduled Area shall cease to be a Scheduled Area or a
part of such an area;
[(aa) increase the area of any Scheduled Area in a
State after consultation with the Governor of that State;]
(b) alter, but only by way of rectification of
boundaries, any Scheduled Area;
(c) on any alteration of the boundaries of a State
or on the admission into the Union or the establishment
of a new State, declare any territory not previously
included in any State to be, or to form part of, a
Scheduled Area;
[(d) rescind, in relation to any State or States, any
order or orders made under this paragraph, and in
consultation with the Governor of the State concerned,
make fresh orders redefining the areas which are to be
Scheduled Areas;]
and any such order may contain such incidental
and consequential provisions as appear to the President
to be necessary and proper, but save as aforesaid, the
order made under sub-paragraph (1) of this paragraph
shall not be varied by any subsequent order."
39. Thus the embargo of Section 41 of the Act of
2013, does not immune the Scheduled Tribes, with an
absolute right and protection from acquiring their land;
because under Sub-section (2) of Section 41, if it is read in
accordance with the object of the acquisition, herein, in this
case, the acquisition in the instant case will be deemed to be
by way of a 'last resort' which was available to the State for
acquiring the land for meeting the defence need of the
country due to topographical, climatic limitations, and
strategic restrictions, because looking to the contour of the
area and its topographical location, particularly, when it is
situated at a height of approximately between 12,000 to
13,000 fts., which ultimately reaches to above 14000 fts.
above sea level, near international border, and is located in
the deep heights of the Himalayas and particularly when, the
land in question, which is proposed to be acquired is not a
motorable track, it becomes strategically of more importance
for the Armed Forces and in the defence need of the nation,
and since there is no other alternative, suitable and safe land
available, in any adjoining area proposed to be acquired, it
would be deemed, that it was only by way of a last resort,
which was available to the State to acquire the land and in
these circumstances, I am of a confirmed opinion, that
irrespective of whatsoever the personal rights, the petitioners
may or might claim to have (though not established as per
law) vested in them by virtue of the implications of the
provisions contained under the U.P.Z.A. & L.R. Act. But,
still too, the exemptions which had been provided under
sub-section (1) and sub-Section (2) of Section 41, will have
precedence over the personal rights and particularly over the
rights and need of the defence of the country and no
compromise or slackness of any nature could be extended or
would be acceptable by this Court, when it comes to meet the
need of defence of the nation, our Motherland, which is of a
prime concern, because we the Indians or the citizens of this
great country of ours, have their peaceful co-existence, only
when the appropriate government, at its any level, is capable
and able to provide a sufficient infrastructure, to the defence
forces to protect our sensitive and vital strategical borders by
installation of sufficient and appropriate military chowkies
equipped with sufficient and suitable ammunition, for
defending the country in the bordering areas, which in turn
defends the citizens, and in the instant case, it could be
reasonable inferred, that the said requirements would
obviously have much more overlining precedence and an
overriding effect over the personal need and hence this Court
of the view, that it cannot be compromised at the cost of the
public or private need and particularly to meet the need of the
country, as envisaged by the preamble of the Constitution
itself.
40. The preamble of the Constitution, which is the
basic vertebra of our country and the foundation of our
Constitution, reads as under:-
"WE, THE PEOPLE OF INDIA, having
solemnly resolved to constitute India into a
[SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity; and to
promote among them all
FRATERNITY assuring the dignity of the
individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this
twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION."
41. The very opening lines of the preamble of the
Constitution of India, expresses a resolution, which has been
extended and resolved by unanimity, by the people of India,
which would obviously include Scheduled Tribes too, which
had laid greater emphasis on solidarity of the Country to
"Constitute India" into a sovereign, socialist, secular,
democratic republic, which are the other basic essential
structure and pillars of the Constitution. It is thereafter strong
constitution of the country only, when under the strength of
the other vital parameters, provided under it, it could be
effectively attained, which had been laid down by the
Constitution of India, its only possible, when all the citizens
of country, we are able to constitute and keep our country
strongly integrated, in order to meet the other objectives,
which had been provided therein, under the preamble. Its
then only, that we would be able to achieve the wider interest
of the country and for the purposes of 'constitution' of a
strong country itself, which is the prime object and motive of
the Constitution of India, and its at this juncture, as per my
opinion, that the defence of the country, becomes an issue of
prime concern too and in fact to meet the said basic
foundational requirement to constitute a safe and strong
nation, this Court is of the confirmed opinion, that it would
be the responsibility of each and every citizen, irrespective of
castes or religion, it would be overriding the personal rights
or even rights of any other statutory nature, which is provided
under law or even if protected under law, particularly when
and where existence of free and well defended country is
endangered or could be endangered, even once it calls for
laying down the parameters of the defending a country,
because its then only, that we would be able to achieve the
other object of the constitutional mandate prescribed by the
preamble of the Constitution of India, and particularly, to
constitute a sovereign republic of India, by providing it with
enough strength to the defence forces, for protecting the
sensitive and strategic borders of our country, its at this
juncture that the personal and legal rights would be
secondary rights, in these circumstances, and cannot have
precedence even if marginally protected under law, over the
defence requirement of the country, hence, personnel or for
that matter even protected public right, would take back seat,
than to the right and imminent need of the defence of the
country.
42. Our Constitution derives its authority from the
intention, which was expressed by the people of India, i.e. the
citizens as contained under Article 5 of the Constitution of
India. The word 'people' referred therein, in the Preamble,
indicates that the Constitution is not created by the State or
by the State Agencies, but rather, it has been created by the
people of India in their concerted capacity to lay down the
parameters, which would be governing the future India. That
is why, in Kesavananda Bharati's case, it has been further
elaborated and observed that the expression given in the
Preamble, which starts with, we the people of India, which is
highlighted its promise, which is made by the citizens of the
country themselves, vesting of all the powers under the
Indian Constitution, to derives its sovereignty for and by the
people, which rests not even in the Parliament. Meaning
thereby, it is exclusive supremacy of its "Constitution", to the
Constitution of India, is by the intention expressed by the
citizens itself. As already referred above, if the preamble is
taken into consideration, if it was the intention of the citizens,
as dealt hereinabove, it is rather reiterated by this Court, that
the prime intention of the unanimity of the decision by the
citizens of the country was to constitute a secure and safe
India, and that is why, the preamble specifically uses the
word "constitutes", which in its literal meaning would mean,
to integrate the country into its strong formation, in order to
meet up the other objectives, which are provided in the
preamble of the Constitution. The only purpose of the
preamble was to show the general purpose and objective, for
which, the authors of the Constitution made the several
provisions in the Constitution itself, but it could not be
regarded as an independent source of any substantive power
or prohibitions, which could only be drawn from the express
provisions in the body of the Constitution or by way of its
rational implications in its applicability in the practical day to
day life. The preamble and its contents are not the prohibition
to the State and its Legislature from restricting a citizen from
doing an act or to claim a right, which though might not have
been expressively reserved to a person or a class of person
under the law, and here when the preamble uses the word,
'citizens' in its wider sense, will not be in an exclusion of any
class of citizens, which fall in the category of the reserved
Castes or Scheduled Tribes.
43. The only use and intention could be made by the
preamble is in interpreting the Constitution was that, where
the terms which are used in the Constitution and the Articles
as contained therein in the Constitution, where they are
ambiguous or are capable of two interpretations and
meanings, in that eventuality, a more realistic meaning has to
be assigned to the ambiguous provisions or law framed under
it, in order to widely meet the need of the country in order to
integrate it into a strong democratic republic, free from being
influenced or dominated by any outer powers. It is not unreal
in case to speak of that the term the people enacting a
Constitution through a constitutional assembly, it is seldom
require, rather it is people who are asked even to approve the
Constitution ostensibly enacted in their name, moreover,
once Constitution is enacted even when, it is submitted to the
people for its approval, it binds thereafter not only the
institutions, if at all, which are covered under the
Constitution. But also, by the methods by which the
Constitution in itself provide in order to regulate its internal
and external affairs of the country. Meaning thereby, the
flexibility in the preamble of the Constitution always widely
aims and intends to achieve a strong country free from the
influences of outer superior powers and thus from this
aptitude of the constitutional mandate, if the impugned
acquisition Notification is taken into consideration, it rather
falls to meet out the very basic intention and objective of
saving its frontier borders from the adjoining enemy country,
with whom, this country has historically faced army
aggressions and insurgencies.
44. Thus even for the aforesaid logic and reasonings,
Section 41 of the Act of 2013, the implications of which has
been harped upon by the Counsel for the petitioners, if
Section 41 is read in its totality, it does not provide or even
remotedly intend to provide, under law, an absolute
immunity to the Scheduled Tribes, from acquiring their land
by making compromise with; for the need of the country so
far it relates to the defence of its sensitive and strategical
borders, adjoining Line of Actual Control, nearing
international borders, which are being shared by India with
China, which is posing consistent military threats to our
'Motherland India'.
45. There could be yet an another angle; from which
the issue could be looked into also, that the petitioners have
contended in the writ petition, that they stand recorded in the
khatauni, after vesting of land with them, with the
enforcement of the provisions of the U.P. Z.A. and L.R. Act,
the copy of respective khatauni, which they have appended
with the records of the writ petition, based on which, they are
showing themselves to be recorded over the land in question,
but their nature of title over the land, or class of tenureship,
in the light of the provisions contained under the Land
Record Manual, has not been classified in the revenue
records, as to what is the nature of their tenure-ship over the
land claimed by them to be theirs, as per the provisions of
Para A124 of Chapter A VIII, which classifies the tenure
ship, over the ZA land, which is the subject matter of
acquisition, coupled with the fact that there are no revenue
entries, which had been made in column 7 to 12 of their
respective khatauni, showing thereof, that as to in what
manner and under which authority of law, the land in
question, which is proposed to be acquired, had devolved
upon the petitioners and under which authority of law and
under which authority of an order having being passed as per
law, which had been passed by the Competent Revenue
Authority.
46. Though this Court, at this stage, is not required or
is venturing into that controversy, for the reason being that,
that would be absolutely altogether a different issue to be
discussed, at yet on an another judicial and legal platform
which may be available, under the relevant revenue laws,
where the petitioners' individual right in relation to the land,
which they claimed to have vested with them, since allegedly
claimed to be possessed since 1880. Which they claim that
they are performing their agricultural activities over it. Which
they claimed, that they have been recorded in the revenue
records. All these aspects would be an issue to be decided
independently by the competent revenue courts, as to whether
at all, under the prevalent revenue law of vesting of rights, as
a consequence of the enforcement of the provisions of
U.P.Z.A. & L.R. Act, whether at all any specific right would,
at all be vested with the petitioners ? Because of the mere un-
established fact, that they had been in possession of the land
as per law and had claimed to be performing agricultural
activities for a limited period of few months, in a year.
47. As already observed in the above paragraphs, that
the petitioners had utterly failed to substantiate their
exclusive respective rights over the land, in question, and
particularly merely because of the fact that the petitioners and
their predecessors had been in possession of the land, hence
the benefit of vesting would be extended to them in order to
create their right of tilling the soil of the land, which is being
sought to be acquired. In order to deal with the aforesaid
argument, though yet again without any legal or documentary
material being placed on record by the petitioner, but this
Court feels it to be necessary to venture into that aspect. As
already observed, when the provisions of U.P. Zamindari
Abolition and Land Reforms Act, was introduced by the
Gazette Notification of 24th January, 1951, and with the
creation of the State of Uttarakhand, the Act was enforced in
the territory of the State of Uttarakhand by virtue of an
Amendment made by the Gazette Notification No.
2241/Revenue/2001 dated 16th July, 2001. Vesting the right
by virtue of which the petitioners claim their right over the
land on the basis of having occupied the same, and the same
is as a consequence of the implications of Section 6 of the
Act. Section 6, if it is read in consonance with Section 4 of
the Zamindari Abolition Act, the vesting of all the rights and
title and interest over the land allegedly claimed to be in
possession, with the enforcement of the Act, it is a right in
continuation which is created with the State of Uttarakhand,
with the enforcement of U.P. Z.A. & L.R. Act, as made
effective with effect from 16th July, 2001, the rights are
vested with the State and not with an individual. The
vesting of right of an individual under Section 4 of the Act,
in fact, it has been laid down in the judgement reported in
[2004 (97) RD 677, Vashisth Kumar Jaiswal Vs. State of
U.P. and others. The relevant para 3 and 4 are extracted
hereunder :-
"3. The respondents No. 5 and 6 were granted
mining lease for three years which started from 28th
April, 2000 and hence it came to an end on 27-4-2003.
We are not going into the various points urged before
us because we are of the opinion that this petition
deserves to be allowed on the short point that once the
period of the lease in favour of respondents No. 5 and 6
expired on 27-4-2003 there is no question of extension
of the lease, and instead there should have been a fresh
public auction/public tender after advertising the same
in well known newspapers having wide circulation.
This procedure is essential, as otherwise Article 14 of
the Constitution will be violated. Transparency in
public administration also requires that such a
procedure should be followed whenever any public
contract is granted. It may be mentioned that the
owner of the land is the State Government and a
Bhumidhar under the U.P.Z.A. and L.R. Act is not
the owner of the land, but he is only tenant, the
owner is the State as the land is vested in it under
Section 4 of the U.P.Z.A. and L.R. Act. Hence it is
not correct to say that the land belongs to the
Bhumidhar.
4. Learned counsel for the respondents relied on a
decision of the Supreme Court in Beg Raj Singh v.
State of U.P., 2003 (1) CRC 362. In our opinion this
decision is wholly distinguishable as Article 14 of the
Constitution has not been considered therein at all."
48. That the effect of vesting under Section 4 to be
read with Section 6, it is only the tilling right, which is
vested, but the ownership of the land still continues to be
vested with the State and the bhumidhar under the Act is not
the owner, but rather he is only a tenant of the land. Hence,
there is no sustainability of right and title over the land to
override the effect of the State's right over the land, whose
right are created by way of vesting under Section 4 to be
read with Section 6 of the Act, and hence, the right of
vesting as claimed by the petitioners, as to be personal right,
is only a vesting of a right of tenant for tilling the soil, but
rather under law, the ownership still continues to be vested
with the State with the enforcement of the Act. The
devolvement of right, by contending themselves to be the
class of tenure holders to be the bhumidhars, is yet again a
prospect, which is not acceptable by this Court for the reason
being, that while dealing with the revenue entry relied by the
petitioners, it has already been observed, that the class of
tenure holdership of the petitioner, has not been defined or
classified under the revenue documents relied by them, and
hence they would not fall within any of the class of tenure
holder, which had been provided under Chapter 8, Section
129 of the U.P. Zamindari Abolition Act, which is to be
exclusively yet to be decided by the competent Revenue
Courts, as constituted under the provisions of the Zamindai
Abolition Act. As the Act has its special constitutional
existence, because of its inclusion in the IXth Schedule of the
Constitution, vide its Entry 11 of it.
49. This Court is yet again unable to derive a
confirmed opinion, with regard to the alleged claim of the
petitioners or their predecessors having been in possession of
the land ever since 1880, for the reason being, that the
khatauni entries, which has been relied and placed on record
by the petitioners themselves in its column '3', shows their
possession to have commenced from 1374 fasli, that means,
under revenue law would be w.e.f. 1967. Even if it is
presumed that, that as per the entries made in column '3', if
the possessory rights, if any, were commencing from 1967,
and in fact, that was in fact much after the enforcement of the
provisions of the U.P.Z.A. & L.R. Act, which was notified to
be enforced in the year 1951, after receiving its Presidential
accent on 24.01.1951. If that be the situation, if the Act itself
was enforced by the Presidential notification dated
24.01.1951 and their entries of possession in the revenue
records, is said to have shown their possession to have
commenced w.e.f. 1374 fasli i.e. 1967 A.D., in that
eventuality, under the normal prevalent revenue laws, quite
obviously, the source of recording of their names in the
revenue records by the orders of competent revenue
authorities, has had to be or it ought to have been reflected in
the entries of column 7 to 12 of the khatauni, which could
have been, possible only by an order of competent revenue
authority, in order to provide a legal and statutory certainty of
their right and title of the land in question, in the absence of
which and particularly in the absence of the fasli years
entries also in relation to which the khatauni relates, which
has been prepared, no comprehensive or any conclusive
inference could have been drawn of creation of an absolute
right and title of the petitioners over the land in question as a
consequence of the effect of the alleged claim by vesting
with the enforcement of the provisions of U.P.Z.A. & L.R.
Act.
50. When the Writ Petition was initially argued, the
Coordinate Bench of this Court, while directing the
respondents to file their counter affidavit, had granted an
interim protection vide its order dated 12.10.2015. During the
intervening period, when the matter was taken up again
before an another Coordinate Bench of this Court on 11th
December, 2019, the Coordinate Bench of this Court had
directed the District Magistrate, to conduct an inspection of
the area, which was proposed to be acquired for the
establishment of Border Outpost for I.T.B.P. and the place of
establishment of frontier Chaukies vide its order dated
11.12.2019. The following orders were passed on the said
date :-
3. The learned Senior Counsel for the petitioners
would argue that the land of the petitioners is being
acquired without there being any proper survey or
inquiry into the matter, when the requirement of the
Union of India can be equally met by acquisition of
other land. Learned Senior Counsel for the petitioners
has stated that there are other lands available which can
be easily acquired for the purposes of establishment of
a "chowki" and the present acquisition is in fact not
required.
4. Let the District Magistrate, Pithoragarh inspect
the area and file an affidavit stating whether there is
another land which can be suitably given to ITBP for
the establishment of a "chowki" and in case it is not, he
shall give reasons therein, for which four weeks' and no
more time is granted.
51. Though this Court has already partly dealt with
the stand of the Government of India, with regard to the
requirement of defence need, in order to meet the argument
of the learned counsel for the petitioners in the light of the
provisions contained under Chapter-II of the Act of 2013, for
the determination of social impact assessment and public
purposes, though it is not made applicable over the impugned
acquisition notification, in the light of the provisions
contained under Section 9 of the Act of 2013, but still, on the
basis of the document, which has been placed on record by
the respondents by virtue of their counter affidavit, it has
been contended, that the border outpost at village Milam, was
for the first time created after the army aggression of 1962,
i.e. Indo-China war, by posting a battalion of the "Special
Protection Force", since 1968. Later on, after the military
survey assessment, which has been made by the coordinated
action of Ministry of Defence and Ministry of Home Affairs,
a decision was taken by the competent superior army
authorities, whereby they have taken a decision, that on
account of consistent war threat perception and since being
the strategic and sensitive bordering areas, adjoining to the
international borders, which are being shared with China, and
which has been demarcated by the line of actual control, it
was then decided by the Government of India, Ministry of
Home Affairs vide its GO No. II-27012/20/2006-PF dated
11th December 2007, that in order to meet any
unprecedented or sudden serious army insurgencies, the
deployed Special Protection Force may not be viable and
adequate enough to defend the strategic frontier of the
country, and hence, it was decided to deploy the 14th
Battalion of I.T.B.P., with a coy strength, to protect the
border areas of the country, and hence, the Ministry of Home
Affairs in coordination with the Ministry of Defence, jointly
felt and took on stock a strategic decision, in the interest of
the nation, that there was an emergent requirement for
additional military operational forces for augmenting the
defence sector in border outposts, adjoining the border of
China. In fact, for the purposes of meeting out said purpose
of the defence, the District Magistrate Pithoragarh, had
requested the Commissioner/ Secretary, Board of Revenue
vide his Letter No. 49 dated 18th September, 2013, for
calling for the feasibility report and about the availability of
any other alternative land. The Board of Revenue vide Letter
No. 5856 dated 30th September, 2013, called for a report
and the feasibility report, which was submitted by Letter No.
24 dated 5th February, 2014, wherein, as per the report
submitted by SDM after actual spot inspection on 16th
December, 2013, following observations was made :-
I. There was no other land available over the site,
which could best and effectively suit the purpose of
the armed forces.
II. Tactically, the land was suitable, owing to its
nearness to the international border, and location of
the already existing bunkers, at places which are so
located to be made outside the firing range of the
enemies.
III. Hence, the proposal was submitted for acquiring the
land, and consequent thereto, a press proposal was
submitted by the District Magistrate for acquisition
vide his Letter No. 3829-30 dated 28th April, 2014,
which was forwarded by the Board of Revenue vide
Letter No. 31 dated 6th April, 2015, and as a
consequence thereto, in compliance with it, the
requisite deposit of amount, which was payable for
compensation towards land acquired, under Section
41 has already been made available by the SHQ
Bareilly on 3rd September, 2015.
52. The respondents in the counter affidavit have
specifically submitted, that if the reports of the Revenue
Authorities are taken into consideration, in fact, the entire
issue of the land being claimed to be an agricultural land, as
taken by the petitioners is per se factually false, because as
per report by the revenue authorities ever since 1990, no
agricultural activities was ever carried, over the land sought
to be acquired for Para Military Forces, rather the land was
lying barren and according to the report, it was strategically
and tactically of more importance and necessary, it was to be
more suitable for the establishment of border outpost and the
development of infrastructure for the armed forces for
augmenting the confidence of the defence personnel, military
assistance for positioning of ammunitions, and for providing
of second line of stand by forces, to meet any immediate
military emergency, which may chance, and would be
obviously be a part of war preparedness, which they are
normally facing due to the threat perception. It has been
further argued by the learned Senior Counsel for the
Government of India, that the tactical site patch of the
proposed land, to be acquired, in fact, is located in such
geographical location, that it covers the two vital approaches
to the Indian territory i.e "Lasar Gad" and the
"International Pass", which are passages of easy
accessibility by the enemies and consistent vigil and control
over the said accessible area could be conveniently
maintained by the armed forces of our country from the land
in question after the deployment of the border outpost, which
only adjoins about 20 to 25 km. from the Line of Actual
Control, hence, is of more importance and is near to the
International Border, which is being shared with China.
53. Apart from it, the learned counsel for the
Government of India, had submitted that the proposed land to
be acquired, is so located that in fact just behind the land in
question, there lies a range of mountains, which are the
segment of the higher Himalayas, which would rather protect
and act as a shield and take away the army outpost and its
bunkers from being brought within the firing range of the
enemy country, because any other adjoining land or open
land, if it falls within the firing range of "Lasar Gad" and
the "International Pass", it would not be suitable for the
army need for defence purposes, and hence, later on, it was
observed and as already extracted, that there is no other
alternative strategic location, which could be made available
in the higher Himalayas, which could be strategically viable
to meet the need of defence personnel needs.
54. In compliance of the aforesaid interlocutory order,
which was passed by the Coordinate Bench of this Court,
during the pendency of the Writ Petition, the respondents had
filed their counter affidavit on 22nd September, 2015. In the
counter affidavit thus filed by the Commandant of I.T.B.P.,
they have contended; that the land proposed to be acquired
was strategically of a national importance for the defence of
the country, for the purposes of deployment of 14th Battalion
of I.T.B.P., with a Coy strength, owing to its strategic
location, since it was adjoining and easily accessible with the
Line of Actual Control, i.e. the border line with the
neighbouring country China, which is approximately only 20
to 25 kms. from the land proposed to be acquired. The
learned Senior Counsel for the respondents, based on the
instructions of the ITBP personnels, who were present in the
Court proceedings, while hearing of the case, had explained
the exact situation on the location in the presence of Counsel
for the petitioner, which is prevailing on the spot at the
moment, which this Court had to topographically analyse the
situation, with the support of the following map, as it was
explained to the Court by the respondents, which is as under:-
55. They have contended, that because of the
consistent threat perception which is commonly known to all
and the sensitivity of the issue of protection of the
international borders of our Nation, which was of greater
importance, the matter had been consistently reviewed at the
level of the Ministry of Home Affairs (MoHA), to the
Government of India, in consultation with Ministry of
Defence (MoD), and it was thereafter only, that on account of
the tactical gaps report, which had been submitted by the
competent Technical Authority of Ministry of Defence, it
was felt that the land in question, was of eminent defence
requirement for augmenting the defence structure of the
border line post of the Para Military Forces of the country,
and accordingly the report to the said effect was submitted by
the Correspondence General Memo No. III/40012/1/BOPs
Augm1/2001/VOL-III-Ops dated 17.12.2012, which reads
as under :-
"2. The recommendations received from all
frontier and suggestions given by Army Eastern
Command and 3rd Inf Div were evaluated in detail at
Dte Gen the Bn-wise deployment of 32 Battalions
which will be on border guarding duties (by the year
2015-16) have been finalized and enclosed as
Annexure- I, II, & III. The concerned Ftrs are requested
to disseminate the deployment to sector and Bn
concerned and ensure its implementation within the
time prescribed.
3. Before implementation, a copy of finalized
deployment may be given to local Army formation for
their information. The induction plan of additional
Battalions to border guarding duties and instructions
already circulated vide Dte Gen memo no-3034 dated-
13/06/2012 should be strictly adhered in to. Till the
time the new Bns take over the BOPs the exiting Bn
will continue to carry out assigned Ops task and initiate
follow up actions for future requirements.
4. The locations where new BOPs are to be
opened and the earmarked SHQ/ Bn are yet to be raised
the concerned Ftr IsG may assign responsibility to
suitable Bn within the Ftr to carry out recce, moving
proposals for acquiring land for BOPs, develop
infrastructures etc so that new Bn can get inducted
immediately offer its operationalisation.
5. The provisioning, engineering and medical
branches may take necessary follow up action for
timely back up support for executing assigned
operational tasks to Ftrs."
56. The respondents in the counter affidavit had
further submitted, that this exercise and to assess the
suitability and the purpose to meet the defence requirement,
as reflected from the report of 17.12.2012 (as extracted
above), as referred in para (II) of the counter affidavit, which
had also been relied by respondent Nos. 3, 4 and 5, they
have also submitted, that a proposal for acquiring 2,4980
hectares of land, i.e. equivalent to 6.007 acres of land, to
meet the defence requirement, was a proposal, which was
initially, submitted by the then District Magistrate,
Pithoragarh vide his Office Letter No. 4077-78 dated
11.05.2009, and accordingly, in lieu of the proposed
acquisition of the land, the respondents/Government of India,
through its Ministry of Defence, had already deposited the
assessed amount, which would have been payable towards
the compensation amounting to the tune of Rs.17,02,068/-
before the District Magistrate, Dehradun vide their letter No.
1054 dated 11.12.2013, which would be in fact in the light of
provisions for compliance of the provisions of sub-section (6)
of Section 41 of the Act of 2013.
57. In order to eradicate the aspect of delay, which
was being caused and the time period, which was probably
being involved to be engaged for acquiring the land, the
attempts and efforts were also made to take over the land of
the private landowners (as claimed by them) by the State,
through private negotiations, but that could not be
materialised and hence, accordingly as per the
Correspondence No.21, made on 17.04.2013, from the office
of Deputy Land Acquisition Officer, the proposal for
acquiring the land, was sent by the Deputy Land Acquisition
Officer, District Pithoragarh, and if the reference made in the
said letter (CA III page 69) is taken into consideration, it
refers to the Letter No. 2760-61, as it was submitted by the
I.T.B.P. on 15.04.2013, expressing their opinion about the
emergent requirement of acquiring the land for establishment
of the border outpost of the armed forces, which was vital
and which was an emergent defence need of the Country.
58. The learned Senior Counsel appearing for the
respondent Nos. 3, 4 and 5, in fact, have also drawn the
attention of this Court, to the correspondence which was
made by the Commandant of I.T.B.P. to the District
Magistrate on 11.05.2009 (CA 1 page 66), which was based
upon the determined emergent necessity, which was
expressed by the Ministry of Home Affairs, to the
Government of India and its Ministry of Defence too, vide
their communication No. MHA UO NO.II-27012/20/2006-
PF dated 11th December, 2007, wherein, the Commandant
had expressed the emergent requirement of the need of land
in Village Milam in the following manner:-
"pwWfd ;g LFkku vUrjk"Vªh; lhek ds fudV gS tgkW ij cy
dh leqfpr rSukrh jk"Vª fgr esa gj le; visf{kr gS] ftl dkj.k bl
Hkwfe dk "kh/kzkfr"kh/kz gLrkUrj.k dj ogkW ij jgus okys tokuksa ds fy,
cSjsd vkfn cqfu;knh lqfo/kk;sa miyC/k djk;s tkus gsrq "kh/kz fuekZ.k
dk;Z izkjEHk fd;k tkuk gSA izLrkfor Hkwfe dks foHkkx }kjk lacfU/kr
Hkw&Lokfe;ksa ls vkilh le>kSrs ls dz; fd;k tkuk lEHko ugha gSA"
59. Hence, the contention of the petitioners, that the
acquisition suffers from the vices of non-compliance of
Section 15, to be read with Section 40 of the Act, though had
already been dealt with and answered above, it is also quite
apparent too from the stand taken by the respondents in their
counter affidavit, in their pleadings and by the various
communications, which has been placed on record, that when
all efforts for private negotiation to takeover the land, in
order to meet the emergent defence need of the country
failed, the acquisition by issuance of the impugned
notification under Section 11 (1) of Act of 2013,became
inevitable and accordingly, the Office of the District
Magistrate, Pithoragarh, vide its Letter No.
49/Hkw0v0/vkbZVhchih&feye/2012-13 dated 18.09.2013, had
forwarded the acquisition proposal to the
Commissioner/Secretary, Board of Revenue to the
Government of Uttarakhand, for acquiring the land for the
I.T.B.P border out post adjoining the border of China.
60. In response to the aforesaid communication,
which was made by the Office of the District Magistrate on
18.09.2013, to the office of Commissioner/Secretary Board
of Revenue, the Commissioner, in order to meet up the
emergent military requirement as per the legislative spirit of
sub-section (2) of Section 41, to be read with Section 40, had
issued an Office Order No. 5856 dated 30.09.2013,
wherein, the Secretary, Board of Revenue, to the State of
Uttarakhand, had called for the comments from the
Government of India, its Ministry of Defence and its
Ministry of Home Affairs, about the feasibility of the land for
the purposes of acquisition and whether any other land could
be made available, or could be worked out to be made
available to be acquired for the Para Military Forces. The
said communication of 30.09.2013, was followed by the
order issued by the office of the District Magistrate, who
alleges and has contended that he undertook the exercises and
had submitted its report vide letter No. 24 dated 25th
February, 2014, wherein, in the aforesaid communication, the
District Magistrate had observed, that after procuring the
reports from various quarters and officials; the proposed land
to be acquired, he had got conducted an enquiry through the
Sub Divisional Magistrate, and as per the report, which has
been made available, the following report was submitted, the
relevant part of which is extracted hereunder:-
"izdj.k ds lEcU/k esa lsukuh] 14 oha okfguh] Hkk0fr0lh0iq0 cy
ds i= la[;k&[email protected]&567&69 fnukad 27-012014 ¼Nk;kizfr
layXud&2½ ds }kjk voxr djk;k x;k gS fd lhek pkSdh dh
LFkkiuk gsrq 3-410 gs0 dk ekud fu/kkZfjr gSA orZeku le; esa
Hkk0fr0lh0iq0 ds dCts esa dsoy ,l0ih0,Q0 ds uke ntZ 0-903 gs0
Hkwfe gSA Hkwfe dh deh ds dkj.k lhek pkSdh esa dk;Zjr tokuksa ds
fuokl vkfn ds fy, dkQh dfBukbZ dk lkeuk djuk iM jgk gS
ftldk tokuksa ds eukscy ij foijhr vlj iM jgk gSA rFkk iwoZ esa
pkSdh dh LFkkiuk gsrq izf'kr xzke feye dh 2-4980 gS0 Hkwfe dks
Hkk0fr0lh0iq0 ds uke vf/kxzg.k djus dk vuqjks/k fd;k x;k gSA
bl izdkj lhekUr {ks= esa Hkk0fr0lh0iq0 dh fee pkSdh dh
LFkkiuk gsrq lkoZtfud Hkwfe] jkT; ljdkj ds LokfeRo dh Hkwfe]
flfoy lks;e ,oa foHkkx dh Hkwfe miyC/k u gks ikus ds dkj.k jk"Vªh;
lqj{kk ds fgr dks n`f"Vxr j[krs gq, Hkwfe/kjkas dh uki Hkwfe dks gh
vf/kxzg.k fd;k tkuk vko";d gSA
vr% vuqjks/k gS fd jk"Vªh; lqj{kk ds gr dks n`f"Vxr j[krs gq,
iwoZ esa vf/kxzg.k gsrq izsf'kr xzke feye dh 2-4980 gS0 Hkwfe/kjksa dh uki
Hkwfe dks Hkw&vtZu vf/kfu;e ds vUrxZr Hkk0fr0lh0iq0 ds uke
vf/kxzg.k ds izLrko esa ifj'kn Lrj ij fopkj djus mijkUr /kkjk&4
¼1½@17 ds vUrxZr "kkldh; foKfIr fuxZr djus gsrq "kklu ds
iz"kkldh; foHkkx dks izLrko izsf'kr djus dk d'V djsaA"
61. Its' not even that, even as per the correspondence
of the office of the Deputy Land Acquisition Officer, which
was made vide its communication, through Letter No. 29
dated 12.03.2014, it was intimated by way of a corrigendum,
that for the proposed land to be acquired, the fresh estimate
of enhanced compensation was assessed as Rs. 45,29,224/-
and as a consequence, in compliance of the said
correspondence, and on the basis of the latest rate of land
which was assessed by the competent revenue authorities, the
additional amount of Rs. 93,32,021/- was proposed to be sent
by the SHQ, Bareilly, vide letter No. 8732 dated 03.09.2015,
to meet up the requirement of the escalated estimated value
of the land, towards compensation of the land, proposed to be
acquired, as per the intention of sub-section (6) of Section 41
of the Act of 2013.
62. When the interlocutory order passed by the
Coordinate Bench of this Court on 11.12.2019, calling for a
report from the District Magistrate, was not complied with,
this Court, vide its order dated 18.08.2021, had directed the
District Magistrate to conduct an enquiry and submit a
supplementary counter affidavit with the report, about the
actual requirement for the establishment of the border outpost
(BOP) of the I.T.B.P., and in compliance thereto, the District
Magistrate had placed on record a Government Order No.
1279/XVIII (II)/03(35)/2021 dated 25.09.2021, wherein, the
proposal thus given by the State Government for offering the
alternative land to I.T.B.P. was objected by the Assistant
Solicitor General, on the ground of its strategic location of
the proposed border outpost, which was to be constructed for
the I.T.B.P., and hence, the Deputy Advocate General was
granted time to file their objection to the proposed
Government Order dated 25.09.2021.
63. The learned counsel for the Government of India
has filed a supplementary counter affidavit on 04.10.2021 in
compliance of the previous order, passed by this Court, and
in compliance thereto, in the supplementary counter affidavit
thus filed by respondent Nos. 3, 4 and 5 on 04.10.2021, they
had produced number of documents, contending thereof that
the proposal, which had been extended by the State
Government, do not suit the defence requirement of the
Armed Forces, which was determined since 2009, (as
explained by map extracted above), and in support thereto,
they have placed on record the google map too of the Milam
Post of the I.T.B.P. in order to substantiate their stand, and
that the land proposed to be acquired is strategically of a
greater importance for the defence personnel and for defence
of the country itself, for high altitude warfare at the height
about 14,000 ft. above seal level, in the higher region of the
Himalayas, adjoining Line of Actual Control, shared between
India and China.
64. On the basis of the aforesaid scrutiny of the
factual aspect, as it has been argued by the respective counsel
for the parties, on overall controversy, which has been argued
by the learned counsel for the petitioners was limited from
the perspective of (i) the effect of vesting; (ii) the effect of
Sections 15, 21, 40 and 41 of the Act of 2013, and (iii) from
the perspective of Section 41 of the Act. These aspects and
arguments, which has been widely and wildly, extended by
the learned counsel for the petitioners was only oral in
nature, without there being any credible material or any
document being placed on record supporting their
contentions on the basis of which, the petitioners could have
foundationed their argument to substantiate, as to in what
manner their personal right was claimed, they can put a
challenge to the Notification issued under Section 11 (1) of
the Act of 2013, and that too when it exclusively intended to
meet the defence need of the Country, which is supreme and
would be above all personal or public purposes, of an
individual or even a community or a segment of community,
cannot have precedence of choice, over the defence need of
the country.
65. By way of a reiteration, though the answer has
already been extended by this Court in the above paras of this
judgment, with regard to the effect of vesting, because as per
opinion of this Court, vesting exclusively under Section 4
and 6 of the Zamindari Abolition Act, would not be a vesting
of a right or ownership over a land, and in the absence of
there being any judicial order passed by the competent
Courts, in favour of the petitioners, which had been created
under the Revenue Law because vesting cannot be by way of
any personal inferences. The vesting contemplated under
Sections 4 and 6, is a vesting of ownership with the
enforcement of U.P. Z.A. & L.R. Act, is with the State,
which exercises its, "eminent domain" over the land and it
is only a right of tilling of the soil, which could be treated to
be given to the legally established occupants of the land,
which too has not been substantiated by the petitioners even
on the basis of revenue entries, as the petitioners' possession
has been shown to be w.e.f. 1374 fasli, i.e. 1976 A.D. and
that is not prior to the enforcement of the U.P. Z.A. & L.R.
Act, which was in 1951, and furthermore, and more because
since it does not classify, as about the nature of title of tenure
ship of the petitioners, in the light of the provisions contained
under Section 129 of the Zamindari Abolition Act, to be read
with provisions of Chapter-A, VIII of the Land Record
Manual, it cannot be said that the petitioners ever had any
exclusive bhoomidhari rights over the land in question, or
were the occupants, because it had been the specific
unrebutted case of respondents that ever since 1990, the land
was lying barren, which is a fact not specifically denied by
petitioners by pleading or by way of placing on record any
authenticated documents.
66. The argument of the learned counsel for the
petitioners though it has already been answered above, which
related to the allegation of non compliance of Sections 15
and 21, and the effect of the protection claimed under
Sections 40 and 41, I am of the view, that in the light of the
purpose of the Act and the exemption, which had been
legislatively contemplated under Section 2 (1) (a) of the
Act, to be read with Section 9, particularly when Section 9
itself excludes the applicability of Section 40; to be applied
when the acquisition is contemplated to be made for the
defence purposes provided under Section 2 (1) (a) of Act of
2013, and particularly when it is exclusively for the security
of the nation, the application of Section 9, which itself is
reflected to have been applied from the impugned
notification that itself will make the argument of the learned
counsel for the petitioners not sustainable. Because, this
Court is of the view that once the exemption has been
attracted under Section 9 of the Act of 2013, and Section 40
has been excluded to be made applicable and since Section
40, itself protects the purpose and intention of Section 21,
the argument of the learned counsel for the petitioners in the
light of the aforesaid provisions and alleging that the
notification violates those provisions would not be
sustainable, and is not acceptable by this Court, hence, it is
turned down.
67. The petitioners have claimed their rights from the
perspective, that they are "Scheduled Tribes" and residents
of "scheduled area", which has been defined in the Fifth
Schedule of the Constitution of India, as framed under
Article 244. Its only an argument. But, there is no material as
such on record as argued or relied by the petitioners in order
to enable them to show that ever the village Milam was
declared, as to be a scheduled area, as per Part-C of the Fifth
Schedule of the Constitution of India, hence in the absence of
the aforesaid material being placed on record or even the
U.P. scheduled tribes order of 1967, which had been heavily
referred to by the petitioners' Counsel, the reference of which
has been made by the petitioners, the protection, if any, could
have only been extended or could have been judicially
considered, if the petitioners would have been able to
succeed by placing on record the evidentiary documents to
show that the land is a scheduled area, which is falling under
the Scheduled Area, as defined under Section 3 (zd) to be
read with Part-C of the Fifth Schedule of the Constitution of
India. In the absence of the same, no benefit could be
extended to the petitioners. Section 3 (zd) defining the
Scheduled Area under the Act of 2013 is extracted
hereunder:-
"(zd) "Scheduled Areas" means the Scheduled
Areas as defined in section 2 of the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act,
1996 (40 of 1996);"
68. But, here in the instant case, this Court is of the
opinion that and as already dealt with in the body of the
judgement, that once the basic vertebra of the Constitution
i.e. its preamble intends to "create a nation", I am of the
view that the creation of a nation could only be by way of its
effective protection of its frontier borders, with the adjoining
enemy countries, which makes the need of defence even
more eminent and superior to any other private and public
rights, where there exist a consistent threat perception of any
army aggression. This Court is of the view that irrespective
of the fact that the Scheduled Tribes, and Scheduled Castes
persons though they might have some personal rights, which
are or which may have been protected by the Constitution or
by the laws framed under it, but the said statutory protection
of an individual or a class of society cannot be treated to be
an absolute right, even to have a far fetching effect to
override the basic intention of the Constitution, to constitute
an integrated and strong country as it was and has been
resolved by all Indians, to provide with the country which is
well protected from its foes. Hence, the definition of citizens
provided under Article 5, will not exclude the protection of a
personal right (which is yet to be established), of a particular
class of Society even when it call upon to defend the country
and to meet the need of the defence personnel, because
personal interest will under and no set of circumstances will
override the public interest or interest of the defence of the
nation, when it comes and directly relates to the defence of
the country, it will keep all the secondary and personnel
protected rights diluted and kept at bay.
69. The perception of public interest or a public
purpose, which has often been a bone of contention in the
various proceedings, which were held before different High
Courts of the Country and the Hon'ble Apex Court, where
the acquisition proceedings is put to challenge, it had
provided various facets for its challenge. Those facets of
public purpose have been primarily dealt with by the various
Courts in the following authorities dealt hereunder, by this
Court, as to how and in what manner the public purpose has
to be dealt with, under the given set of circumstances and
facts of the each case. However, in none of the authorities,
the sovereignty or the defence need of the nation, has been
dealt, while dealing with the personnel or public purposes, in
relation of land acquisition.
70. In a judgement, as reported in AIR 1996 SC
1051, Chameli Singh and others Vs. State of U.P. and
others, it was a case, which was arising out of the
acquisition proceedings, which was made as a compulsory
acquisition by the State of U.P. in order to meet up the public
purpose as involved consideration in the said case for
enforcement of a Public Housing Scheme for the Dalits. The
Hon'ble Apex Court under the aforesaid backdrop of the
need for public purpose to meet the housing requirement of
the Schedule Castes of society, have brought the same within
the ambit of public requirement and had upheld the concept
of exercise of the powers of 'eminent domain' for the public
purpose of acquisition for laying down the housing scheme
for the oppressed class of the society, but however, the limit
of exercise of powers, as it has been observed in para 16 and
17 of the said judgement, which is extracted hereunder, could
only be justified and would be outside the ambit of a judicial
review, so long the exercise of the powers for the public
purpose, the individual rights of the owners is protected by
providing the land losers with an award of adequate
compensation as per the parameters, which had been laid
down under the Act, and the acquisition could be proceeded
with in accordance with law of acquisition, because once
there is a deprivation of the land, which deprives the owners
of his right of livelihood, the same should be suitably
remunerated by payment of adequate compensation. Para 16
and 17 are quoted hereunder :-
"16. It is true that there was pre-notification and
post-notification delay on the part of the officers to
finalise and publish the notification. But those facts were
present before the Government when it invoked urgency
clause and dispensed with inquiry under Section 5-A. As
held by this Court, the delay by itself accelerates the
urgency: Larger the delay, greater be the urgency. So long
as the unhygienic conditions and deplorable housing needs
of Dalits, Tribes and the poor are not solved or fulfilled,
the urgency continues to subsist. When the Government
on the basis of the material, constitutional and
international obligation, formed its opinion of urgency, the
court, not being an appellate forum, would not disturb the
finding unless the court conclusively finds the exercise of
the power mala fide. Providing house sites to the Dalits,
Tribes and the poor itself is a national problem and a
constitutional obligation. So long as the problem is not
solved and the need is not fulfilled, the urgency continues
to subsist. The State is expending money to relieve the
deplorable housing condition in which they live by
providing decent housing accommodation with better
sanitary conditions. The lethargy on the part of the officers
for pre and post-notification delay would not render the
exercise of the power to invoke urgency clause invalid on
that account.
17. In every acquisition by its very compulsory
nature for public purpose, the owner may be deprived of
the land, the means of his livelihood. The State exercises
its power of eminent domain for public purpose and
acquires the land. So long as the exercise of the power is
for public purpose, the individual's right of an owner must
yield place to the larger public purpose. For compulsory
nature of acquisition, sub-section (2) of Section 23
provides payment of solatium to the owner who declines
to voluntarily part with the possession of land. Acquisition
in accordance with the procedure is a valid exercise of the
power. It would not, therefore, amount to deprivation of
right to livelihood. Section 23(1) provides compensation
for the acquired land at the prices prevailing as on the date
of publishing Section 4(1) notification, to be quantified at
later stages of proceedings. For dispensation or
dislocation, interest is payable under Section 23(1-A) as
additional amount and interest under Sections 31 and 28 of
the Act to recompensate the loss of right to enjoyment of
the property from the date of notification under Section
23(1-A) and from the date of possession till compensation
is deposited. It would thus be clear that the plea of
deprivation of right to livelihood under Article 21 is
unsustainable."
71. Having scrutinised the aforesaid principle laid
down in the said judgement, this Court is of the view that
when the Hon'ble Apex Court has laid down that the need of
Housing requirement of the Dalits, to be within the ambit of
public purpose, there cannot be any iota of doubt, that the
need in the present case for which, the land is supposed to be
acquired in the instant case, i.e. for defence of the country,
which is supreme to all needs, would definitely be to meet
the wider public interest of every citizen of the country and
the exercise of powers by issuing a Notification, would also
definitely fall to be within a rightful exercise of powers under
the theory of 'eminent domain' and that too, when it is
backed with a concrete and concerted decision-making
process by Ministry of Home Affairs and Ministry of
Defence, based on its tactical reports, prior to making the
recommendation for acquiring the land for construction of
the Military Outpost at the places, which falls to be outside
the firing range of the enemy country, China, in the higher
range of Himalayas, which are not easily and consistently
assessable, and which engages about 65 kms. of track, from
the last motorable point, its where prior preparedness is of
much national importance and concern.
72. For the purposes of answering the elements
required to be satisfied and considered for justifying an
acquisition for public purpose, a reference to yet another
judgement of the Hon'ble Apex Court as reported in (1995) 5
SCC 587, State of U.P. and another Vs. Keshav Prasad
Singh becomes relevant, it was a case where the State of
U.P. by issuing a Notification under Section 4 / 6 of the Land
Acquisition Act of 1894, as it was then applicable, intended
to acquire a property for construction of a wall on the land of
the private owners, who were respondents in the said case
and the issue was emanating from a Civil Suit for the grant of
decree of permanent injunction. Para 4 of the said judgement
is extracted hereunder :-
"4. Having considered the respective contentions,
we are of the considered view that the conclusion of the
High Court was clearly illegal. It is seen that the land
acquired was for a public purpose. Admittedly, the
same land was acquired in the year 1963 for building a
PWD office and after construction a compound wall
was also constructed to protect the building. As found
by the civil court, on adducing evidence in a suit that
the Department had encroached upon the respondent's
land which was directed to be demolished and delivery
of possession to be given. It is seen that when that land
was needed for a public purpose, i.e., as part of public
office, the State is entitled to exercise its power of
eminent domain and would be justified to acquire the
land according to law. Section 4(1) was, therefore,
correctly invoked to acquire the land in dispute. It is
true that the State had not admitted that its officers had
encroached upon the respondent's land and had carried
the matter in appeal. The finding of the civil court was
that the property belongs to the respondent. The factum
of the action under the Act implies admission of the
title of the respondent to the extent of land found by the
civil court to be an encroachment. Though the State
chose to file the appeal which was pending, better
judgment appears to have prevailed on the State to
resort to the power of eminent domain instead of taking
a decision on merits from a Court of Law. In view of
the fact that the PWD office building was already
constructed and a compound wall was needed to make
the building safe and secure and construction was
already made, which is a public purpose, the exercise of
power of eminent domain is perfectly warranted under
law. It can neither be said to be colourable exercise of
power nor an arbitrary exercise of power."
73. It has been rather in those circumstances too when
it was held by the Hon'ble Apex Court, that if the land is
needed for the public purpose, to be made as a part of the
public office of the State, if that has been brought to be
within the ambit of public purpose, as per the ratio laid down
therein, there cannot be any scope of doubt with regard to the
public need, as expressed in the present acquisition
proceedings, being undertaken by the impugned Notification,
for acquiring the land for the purposes of defence
requirements. Here, in the present circumstances, according
to my opinion, or the parameters which had been laid down
in the aforesaid judgement dealt with above, were with
regard to the aspect of the need for public purpose, which is
to be first satisfied before State exercises its power under the
theory of 'eminent domain', that when the Government of
India was satisfied, under the circumstances of the present
case to meet the defence need of country.
74. Hence, I am of a considered view that nothing can
be more superior subject for compulsory acquisition under
the concept of public purpose, than to the need of the defence
of the country, where irrespective of the class to which, the
land owner belongs, it will have no right of precedence over
the property, merely because it belongs to class of a society,
which falls within the ambit of definition of citizens under
Article 5 of the Constitution, and in that eventuality too, the
acquisition even of a land belonging to the Scheduled Tribes,
lying in a Scheduled Area (which is not established in the
instant case at the hands of the petitioner), the acquisition
resorted to by the respondents/State satisfies both the
elements and the same cannot be put to a judicial scrutiny,
which needed a Technical Expertise for its opinion, and
which, as per the records is quite apparent, that the various
reports, which has been submitted by the competent superior
Military Officials and the State Revenue Department, as well
as the Ministry of Home Affairs to the Government of India,
they have just held that looking to the topographical
constraints, the land was so strategic and of crucial
importance for the defence personnel, because it was so
strategically located, that it would have conveniently enabled
the paramilitary or the military forces to keep a vigil on the
"International Passes" and "Lasar Gad", adjoining to the
Line of Actual Control, which could be an easy access of the
military forces of the adjoining country, China into the Indian
territory, and hence, if the land, in question, is strategically
so located to keep a consistent check and vigil on the
bordering activities, it definitely becomes a public purpose of
a much greater importance for the Nation as a whole, and
where an individual right or for that purpose even a right of a
community, even if it is protected under law, cannot have a
predominant effect, over the need of the Nation, to meet any
probable military crisis, which is intended by the constitution
of the country.
75. In yet another judgement of the Hon'ble Apex
Court as reported in 1995 Supp. (1) SCC 596, Jilubhai
Nanbhai Khachar and others Vs. State of Gujrat and
another, in the said judgement, the Hon'ble Apex Court was
dealing with the tenancy law, as applicable in the State of
Maharashtra and its co-related implications of deprivation of
a property of an individual by the acquisition of a land for
public purposes, as provided therein, under the law enacted
by the State Legislature or the Parliament or under any other
alternative or substituted legislation, to meet the requirement
of a public purpose. The said judgement in its para 30 to 36
has yet again dealt with, the wider parameters, as to how, the
percept of a right of a State to take over the property under
the exercise of its power of theory of 'eminent domain' to
meet the public requirement could be conjointly and
harmoniously read with the rights which are preserved under
Article 300A of the Constitution of India. The theory of
'eminent domain' is the highest and the most benevolent
idea of property vested with the State, in the exercise of
its power of dominion over the land falling within its
territorial jurisdiction and while taking it over in the
exercise of its sovereign power, because it gives a right to
the State to resume a possession of the property to meet
the public requirement in the manner directed by the
Constitution and the laws framed thereunder. Whenever
the powers is to be exercised for meeting the public
requirement. But, it was not under the pretext of defence
need of the country. Para 30 to 36 of the said judgement is
extracted hereunder :-
"30. Thus it is clear that right to property under
Article 300-A is not a basic feature or structure of the
Constitution. It is only a constitutional right. The
Amendment Act having had the protective umbrella of
Ninth Schedule habitat under Article 31-B, its invalidity is
immuned from attack by operation of Article 31-A. Even
otherwise it would fall under Articles 39(b) and (c) as
contended by the appellants. It is saved by Article 31-C.
Though in the first Minerva Mills case, per majority,
Article 14 was held to be a basic structure, the afore-
referred and other preceding and subsequent to the first
Minerva Mills case consistently held that Article 14 is not
a basic structure. Article 14 of the Constitution in the
context of right to property is not a basic feature or basic
structure. The Constitution 66th Amendment Act, 1990
bringing the Amendment Act 8 of 1982 under Ninth
Schedule to the Constitution does not destroy the basic
structure of the Constitution.
31. Even agreeing with the contention that after the
Constitution Forty-fourth Amendment Act, 1978, which
had come into force from 19-6-1979, the right to property
engrafted in Chapter IV, Part 17, namely Article 300-A
that the appellants are entitled to its protection, whether
Section 69-A is unconstitutional? The heading "Right to
Property" with marginal note reads thus:
"300-A. Persons not to be deprived of property, save
by authority of law.-- No person shall be deprived of
his property save by authority of law."
which is restoration of Article 31(1) of the Constitution.
32. In Subodh Gopal case Patanjali Sastri, C.J., held
that the word 'deprived' in clause (1) of Article 31 cannot
be narrowly construed. No cut and dry test can be
formulated as to whether in a given case the owner is
deprived of his property within the meaning of Article 31;
each case must be decided as it arises on its own facts.
Broadly speaking it may be said that an abridgement
would be so substantial as to amount to a deprivation
within the meaning of Article 31, if, in effect, it withheld
the property from the possession and enjoyment by him or
materially reduced its value. S.R. Das, J., as he then was,
held that clauses (1) and (2) of Article 31 dealt with the
topic of "eminent domain", the expressions "taken
possession of" or 'acquired' according to clause (2) have
the same meaning which the word 'deprived' used in
clause (1). In other words, both the clauses are concerned
with the deprivation of the property; taking possession of
or acquired, used in clause (2) is referable to deprivation
of the property in clause (1). Taking possession or
acquisition should be in the connotation of the acquisition
or requisition of the property for public purpose.
Deprivation specifically referable to acquisition or
requisition and not for any and every kind of deprivation.
In Dwarkadas Shrinivas of Bombay v. Sholapur Spinning
and Weaving Co. Ltd. Mahajan, J., as he then was,
similarly held that the word 'deprived' in clause (1) of
Article 31 and acquisition and taking possession in clause
(2) have the same meaning delimiting the field of eminent
domain, namely, compulsory acquisition of the property
and given protection to private owners against the State
action. S.R. Das, J. reiterated his view laid in Subodh
Gopal case. Vivian Bose, J. held that the words "taken
possession of " or 'acquired' in Article 31(2) have to be
read along with the word 'deprived' in clause (1). Taking
possession or acquisition amounts to deprivation within
the meaning of clause (1). No hard and fast rule can be
laid down. Each case must depend on its own facts. The
word 'law' used in Article 300-A must be an Act of
Parliament or of State legislature, a rule or statutory order
having force of law. The deprivation of the property shall
be only by authority of law, be it an Act of Parliament or
State legislature, but not by executive fiat or an order.
Deprivation of property is by acquisition or requisition or
taking possession of for a public purpose.
33. It is true as contended by Shri Jhaveri that clause
(2) of Article 31 was not suitably incorporated in Article
300-A but the obligation to pay compensation to the
deprived owner of his property was enjoined as an
inherent incident of acquisition under law is equally
untenable for the following reasons. Ramanatha Aiyar's
The Law Lexicon Reprint Edn. 1987, p. 385, defined
"eminent domain" thus:
"The right of the State or the sovereign to its
or his own property is absolute while that of the
subject or citizen to his property is only
paramount. The citizen holds his property subject
always to the right of the sovereign to take it for a
public purpose. This right is called 'eminent
domain'."
At p. 386 it was further stated that:
"The sovereign power vested in the State to
take private property for the public use, providing
first a just compensation therefor. A superior right to
apply private property to public use. A superior right
inherent in society, and exercised by the sovereign
power, or upon delegation from it, whereby the
subject-matter of rights of property may be taken
from the owner and appropriated for the general
welfare. The right belonging to the society or to the
sovereign, of disposing in cases of necessity, and for
the public safety, of all the wealth contained in the
State is called eminent domain. The right of every
Government to appropriate, otherwise than by
taxation and its police authority, private property for
public use. The ultimate right of sovereign power to
appropriate not only the public property but the
private property of all citizens within the territorial
sovereignty, to public purposes. Eminent domain is
in the nature of a compulsory purchase of the
property of the citizen for the purpose of applying to
the public use."
In Black's Law Dictionary, 6th Edn., at p. 523
"eminent domain" is defined as:
"The power to take private property for public use
by the State, municipalities, and private persons or
corporations authorised to exercise functions of public
character.... In the United States, the power of eminent
domain is founded in both the Federal (Fifth
Amendment) and State Constitutions. The Constitution
limits the power to taking for a public purpose and
prohibits the exercise of the power of eminent domain
without just compensation to the owners of the property
which is taken. The process of exercising the power of
eminent domain is commonly referred to as
'condemnation' or 'expropriation'."
34. The right of eminent domain is the right of the
sovereign State, through its regular agencies, to
reassert, either temporarily or permanently, its
dominion over any portion of the soil of the State
including private property without its owner's consent
on account of public exigency and for the public good.
Eminent domain is the highest and most exact idea of
property remaining in the Government, or in the
aggregate body of the people in their sovereign
capacity. It gives the right to resume possession of the
property in the manner directed by the Constitution
and the laws of the State, whenever the public interest
requires it. The term 'expropriation' is practically
synonymous with the term "eminent domain".
35. This Court in Chiranjit Lal Chowdhuri v. Union
of India held that eminent domain is a right inherent in
every sovereign to take and appropriate private property
belonging to individual citizens for public use. The
limitation imposed upon acquisition or taking possession
of private property which is implied in clause (2) of
Article 31 is that such taking must be for public purpose.
The other condition is that no property can be taken,
unless the law which authorises such appropriation
contains a provision for payment of compensation in the
manner as laid down in the clause. In State of Bihar v.
Kameshwar Singh, the "eminent domain" was held to
be a right inherent in every sovereign to take and
appropriate private property belonging to individual
citizens for public use without owner's consent. The
limitation imposed upon acquisition or taking possession
of private property which is implied in clause (2) of
Article 31 is that such taking must be for public purpose.
The other condition is that no property can be taken,
unless the law which authorises such appropriation
contains a provision for payment of compensation in the
manner laid down in the clause. Mahajan, J., as he then
was, quoting from Thayer's Cases on Constitutional Law
stated that: (SCR p. 929)
"Shorn of all its incidents, the simple definition of the
power to acquire compulsorily or of the term 'eminent
domain' is the power of the sovereign to take property for
public use without the owner's consent. The meaning of
the power in its irreducible terms is, (a) power to take, (b)
without the owner's consent, (c) for the public use. The
concept of the public use has been inextricably related to
an appropriate exercise of the power and is considered
essential in any statement of its meaning. Payment of
compensation, though not an essential ingredient of the
connotation of the term, is an essential element of the
valid exercise of such power."
36. In Bishambhar Dayal Chandra Mohan v. State of
U.P., this Court had held that the State Govt. cannot while
taking recourse to the executive power of the State under
Article 162, deprive a person of his property. Such power
can be exercised only by authority of law and not by a
mere executive fiat or order. It is, therefore, necessarily
subject to Article 300-A. Eminent domain, therefore, is a
right inherent in every sovereign State to expropriate
private property for public purpose without its owner's
consent which inheres in Article 300-A and it would be
exercised by the authority of law and not by executive fiat
or order."
76. In order to answer the arguments extended by the
learned counsel for the petitioners in the light of the tenancy
laws, in the instant case, where the 'right of vesting' has
been claimed by the petitioners over the property, in
question, though without any authority of law, the principle
in the said context has been dealt with in para 42 of the said
judgement which is extracted hereunder :-
"42. Property in legal sense means an aggregate of
rights which are guaranteed and protected by law. It
extends to every species of valuable right and interest,
more particularly, ownership and exclusive right to a
thing, the right to dispose of the thing in every legal
way, to possess it, to use it, and to exclude everyone
else from interfering with it. The dominion or indefinite
right of use or disposition which one may lawfully
exercise over particular things or subjects is called
property. The exclusive right of possessing, enjoying,
and disposing of a thing is property in legal parameters.
Therefore, the word 'property' connotes everything
which is subject of ownership, corporeal or incorporeal,
tangible or intangible, visible or invisible, real or
personal; everything that has an exchangeable value or
which goes to make up wealth or estate or status.
Property, therefore, within the constitutional protection,
denotes group of rights inhering citizen's relation to
physical thing, as right to possess, use and dispose of it
in accordance with law. In Ramanatha Aiyar's The Law
Lexicon, Reprint Edn., 1987, at p. 1031, it is stated that
the property is the most comprehensive of all terms
which can be used, inasmuch as it is indicative and
descriptive of every possible interest which the party
can have. The term property has a most extensive
signification, and, according to its legal definition,
consists in free use, enjoyment, and disposition by a
person of all his acquisitions, without any control or
diminution, save only by the laws of the land. In
Dwarkadas Shrinivas case this Court gave extended
meaning to the word property. Mines, minerals and
quarries are property attracting Article 300-A."
77. The Division Bench of Allahabad High Court has
also dealt with the aspect of co-related study between the
aspect of acquisition and its implication on the public
purpose. The relevant observations has been made by the
Division Bench of the Allahabad High Court in a judgement
reported in 2008 (1) UPLBEC 211, Manju Lata Agrawal
(Smt.) Vs. State of U.P. and others, and particularly, for its
reference, the public purpose in the said case has been widely
discussed in para 11 to 14 of the said judgement, which is
extracted hereunder:-
"11. In Daulat Singh Surana and Ors. v. First
Land Acquisition Collector and Ors. (2007) 1 SCC 641,
the Hon'ble Supreme Court while considering the
meaning and scope of the expression "public purpose"
considered large number of its earlier judgments,
particularly, State of Bombay v. Bhanji Munji and Anr.
; State of Bombay v. Ali Gulshan ; State of Bombay v.
R.S. Nanji ; Babu Barkya Thakur v. State of
Bombay and Ors. ; Somawanti v. State of Punjab and
Ors. ; and Arnold Rodricks and Anr. v. State of
Maharashtra and Ors. , and came to the conclusion that
it is not possible to precisely define the expression
"public purpose" as it would depend upon the facts and
circumstances of each case. However, the Government
is the best judge to decide as to whether the public
purpose is served by issuing the Notification for
acquisition of land. The public purpose must include an
object in which the general interest of the community as
opposed to the particular interest of individual, is
directly and vitally concerned. Public purpose is bound
to change with time and the prevailing conditions in the
given area. Therefore, it cannot be defined within a
particular framework. The declaration made by the
Government in this regard is final. The Court has a
limited scope of judicial review to interfere only if it is
satisfied that it was a colourable exercise of power, on
being challenged by the aggrieved party. The Court
further held as under:
"Public purpose" is not static. It also
changes with the passage of time, needs and
requirements of the community. Broadly
speaking, public purpose means the general
interest of the community as opposed to the
interest of an individual.
The power of compulsory acquisition is
described by the term "eminent domain" can
be exercised only in the interest and for the
welfare of the people. The concept of public
purpose should include the matters, such as
safety, security, health, welfare and prosperity
of the community or public at large.
The concept of "eminent domain" is an
essential attribute of every State. This concept
is based on the fundamental principle that the
interest and claim of the whole community is
always superior to the interest of an individual.
12. It is also settled by now that once the original
acquisition is valid and title has vested in the
State/Authority then how it uses the excess land is not
of any concern of the original owner and cannot be
made a ground for invalidating the acquisition. A valid
acquisition cannot be voided because long after, the
Authority diverts its public purpose other than shown at
the time of initial acquisition. The excess land can also
be sold by public auction, the erstwhile owner cannot
claim restitution of the part of the land as it vests in the
State free from all encumbrances. Vide Gulam Mustafa
and Ors. v. The State of Maharashtra and Ors.
; Chandragauda Ramgonda Patil and Anr. v. State of
Maharashtra and Ors. ; C. Padma and Ors. v. Dy.
Secretary to the Govt. of Tamil Nadu and Ors. ; Slate of
Kerala and Ors. v. M. Bhaskaran Pillai and Anr. ; Tulsi
Cooperative Housing Society, Hyderabad etc., etc.
v. State of Andhra Pradesh and Ors. and Govt., of A.P.
and Anr. v. Syed Akbar .
13. Thus, in view of the above, the Court has to
examine, as in the specific case on hand, whether the
land is sought to be acquired for a public purpose.
14. In State of U.P. v. Smt. Pista Devi and Ors.
AIR 198f SC 2025, the Hon'ble Supreme Court
considered its earlier judgment in Narayan Govind
Gavate etc. v. State of Maharashtra and Ors. , wherein it
was held that the scheme relating to development of
residential area in urban centres was not so urgent that
it was necessary for eliminating the inquiry
under Section 5A of the Act and came to the conclusion
that because of the subsequent fast development of
urbanisation, the situation has completely changed and
the problem of housing accommodation has become a
matter of national urgency. Taking judicial note of this
kind of development, the Court held that the acquisition
of land for providing housing sites can warrant
dispensation of the inquiry under Section 5A of the Act.
The Court further held that where a large area of land is
sought to be acquired, the scheme of planned
development should not be frustrated by judicial
interference at the behest of few persons. On the issue
that there was an omission in the notification issued
under Section 17(1-A) of the Act regarding the
agricultural land the Court held that it was not fatal for
the reason that the Government had the power to
acquire the land other than waste and arable land also
by invoking urgency clause."
78. Though, factually in the said case, the land, which
was sought to be acquired was for the purposes of Plan
Development at Mathura area, but taking into account the
population growth, the religious importance of the place and
that has been brought within the ambit of the public purpose
on the pretext that since the concept of the public purpose
cannot literally be defined precisely in a strict jacketed
formula, it has to be ascertained on the basis of the facts and
circumstances of each and every case of acquisition for
meeting the public requirement and in that eventuality, the
judgment of Division Bench of Allahabad High Court,
becomes relevant in the present context and subject of
acquisition, in the aforesaid judgement, it has been observed,
that for the purposes of determination of the aspect of public
purpose, the Government is the best judge to assess the
requirement of the public purpose, and particularly, in the
instant case, when it relates to the defence of the country for
protecting its Bordering Frontier, then obviously, it would be
the Government of India, through its Ministry of Defence and
Ministry of Home Affairs, who could in joint collaboration
best assess the public requirement, and which has been
adhered to in the instant case by observing the aforesaid
principles, as would be apparent from the various documents
relied and referred to by the learned counsel for the
Government of India.
79. In that eventuality, the Division Bench of the
Allahabad High Court has held, that where under the facts of
a particular case, it has been made out that it satisfies the
public purpose, in that eventuality, the acquisition cannot be
made as a subject matter of judicial review by the Courts, on
the question of public purpose, particularly when its
determination has already been made by competent technical
authorities, who had expressed their concerted opinion on the
requirement of a particular land to be acquired to meet the
public purpose of defence need of the country of its borders.
The legal preposition, which has been derived at could also
be extracted from the observation, which had been made in
para 39 and 40 of the said judgement, which is extracted
hereunder :-
"39. It is a settled legal proposition that the scope
of judicial review is limited to the decision making
procedure and not against the decision of the authority
The Court could review to correct errors of law or
fundamental procedural requirements, which may lead
to manifest injustice and can interfere with the
impugned order in exceptional circumstances. In
judicial review, the Court cannot trench on the
jurisdiction to appreciate the evidence and arrive at its
own conclusion as it is not an appeal from a decision.
Review of the decision is not permissible where the
findings are recorded by an authority on the basis of
legal evidence and the said findings are not based either
on ipsi dixit or conjectures or surmises. The Court
cannot interfere on the ground that the matter requires
appraisal of evidence. "Between appraisal of evidence
and total lack of evidence, there is an appreciable
difference which could never be lost sight of".
40. The power of judicial review of the writ court
is limited, but it has competence to examine as to
whether there was material to form such an opinion as
required by law or the findings recorded by the
authority concerned are perverse. It is settled law that
non-consideration of relevant material renders an order
perverse. A finding is said to be perverse when the
same is not supported by evidence brought on record or
they are against the law or where they suffer from the
vice of procedural irregularities Vide Purushottam Chandra v.
State of U.P. and Ors. ; Mohar Singh v. President Notified
Area Committee, Colonelganj and Ors. 1956 ALJ
759; Gaya Din v. Hanuman Prasad AIR 2001 SC 386; and In
the matter of Special Reference No. 1 of 2002 Gujrat
Assembly Election Matter."
80. The aforesaid judgment deals with as to what
would be the expanse of exercise of powers of 'judicial
review' for acquiring the land for meeting the public purpose
and if no malice is attributed to the acquisition, and there is
an emergency for acquiring the land and the same is in the
interest of the nation, the same cannot be put to challenge by
way of a judicial scrutiny before the Courts, and that too
particularly when, the circumstances has already been
determined by the competent authorities, and ultimately, the
conclusion which has been derived at by the Division Bench
of the Allahabad High Court, as contained in para 71 of the
said judgement, which is extracted hereunder, as to under
what circumstances, the concept of public purpose could be
best determined for the purposes of invocation of emergency
clause to meet a public requirement. Para 71 of the said
judgement is extracted hereunder :-
"71. In view of the aforesaid settled legal
propositions, it emerges that the land can be acquired
for public purpose; the expression 'public purpose'
cannot be defined by giving a specific definition as the
same cannot be fitted in a straitjacket formula. The
facts and circumstances of each case have to be
examined to find out whether acquisition is for a public
purpose. Right to property is a
constitutional/statutory/human right of an individual
person. A person interested has a right to file objections
under Section 5-A of the Act though such a right is
limited for pointing out that the purpose for which the
land is acquired is not a public purpose or the land of
she said person is not suitable for that purpose or the
area of the land sought to be acquired would be
excessive for serving the said purpose as the land
cannot be acquired for some other collateral purpose.
Such objections form the basis of an enquiry
under Section 5-A of the Act. In exceptional
circumstances whore there is a grave urgency or
unforeseen emergency, the Government is competent to
invoke the urgency powers contained under Sections
17 of the Act and take possession before making the
Award. In a case of urgency or emergency Government
is also competent to take a decision that in order to
avoid further delay, the enquiry envisaged
under Section 5-A of the Act be dispensed with, but for
taking such a decision, there must be existing and
relevant material before the Government and it must
apply its mind as to whether he urgency is such that
persons interested are to be deprived of their right to
file objections under Section 5-A of the Act. Invoking
the provisions under Sections 17(1) or 17(2) of the Act
would not automatically dispenses with the enquiry
under Section 5-A. There has to be an independent
decision by the State Government for such
dispensation. Section 17(4) itself indicates that the
"Government may direct that the provisions of Section
5-A shall not apply." The recital of such an opinion in
the order or in notification is not necessary. Not
reasons have to be recorded in this regard in the
official records. It is a case of subjective satisfaction of
the Government and once the Government forms the
opinion and dispenses with the enquiry under Section 5-
A of the Act, the Court, in its limited jurisdiction of
judicial review, cannot declare tie acquisition
proceedings bad. Pre or post notification delay or
lethargy on the part of the officials of the State
Government is not fatal to acquisition proceedings.
Very often persons interested in the land proposed to be
acquired make various representations to the
concerned authorities against the proposed acquisition
This is bound to result in a multiplicity of enquiries,
communications and discussions leading invariably to
delay in the execution of even urgent projects Very
often the delay makes the problem more and more acute
and increases the urgency of the necessity for
acquisition. There is no prohibition in law for acquiring
the land for a public purpose, which is not in
conformity with the land use shown in the Master Plan,
as the Master Plan can be amended/modified by the
Government. Acquisition of the land for a use other
than the se for which it had been earmarked in the
Master Plan can be initiated in anticipation of approval
to the proposed amendment/modification of the Master
Plan by the State Government. Planned development
proposed should not b installed at the behest of a few
aggrieved persons, where a huge chunk of land belongs
to a very large persons is involved."
81. In yet another Constitution Bench judgement, as
reported in 2011 (8) SCC 708, Rajiv Sarin and another Vs.
State of Uttarakhand and others, in para 68, 70, 71, 77 and
78, which is extracted hereunder :
"68. The incident of deprivation of property within
the meaning of Article 300-A of the Constitution normally
occurred mostly in the context of public purpose. Clearly,
any law, which deprives a person of his private property
for private interest, will be amenable to judicial review. In
the last sixty years, though the concept of public purpose
has been given quite wide interpretation, nevertheless, the
"public purpose" remains the most important condition in
order to invoke Article 300-A of the Constitution.
70. Under the Indian Constitution, the field of
legislation covering claim for compensation on
deprivation of one's property can be traced to Schedule
VII List III Entry 42 of the Constitution. The Constitution
(Seventh Amendment) Act, 1956 deleted Schedule VII
List I Entry 33, List II Entry 36 and reworded List III
Entry 42 relating to "acquisition and requisitioning of
property". The right to property being no more a
fundamental right, a legislation enacted under the
authority of law as provided in Article 300-A of the
Constitution is not amenable to judicial review merely for
alleged violation of Part III of the Constitution.
71. Article 31-A was inserted by the Constitution
(First Amendment) Act, 1951 to protect the zamindari
abolition laws. The right to challenge laws enacted in
respect of the subject-matter enumerated under
Articles 31-A(1)(a) to (g) of the Constitution on the
ground of violation of Article 14 was also
constitutionally excluded. Further, Article 31-B read
with the Ninth Schedule to the Constitution protects all
laws even if they are violative of Part III of the
Constitution. However, it is to be noted that in the
Constitutional Bench decision in I.R. Coelho v. State of
T.N.15 this Court has held that the laws added to the
Ninth Schedule to the Constitution, by violating the
constitutional amendments after 24-12-1973, would be
amenable to judicial review on the ground like basic
structure doctrine.
77. Article 31(2) of the Constitution has since been
repealed by the Constitution (Forty-fourth Amendment)
Act, 1978. It is to be noted that Article 300-A was inserted
by the Constitution (Forty-fourth Amendment) Act, 1978
by practically re-inserting Article 31(1) of the
Constitution. Therefore, right to property is no longer a
fundamental right but a right envisaged and conferred by
the Constitution and that also by retaining only Article
31(1) of the Constitution and specifically deleting Article
31(2), as it stood. In view of the aforesaid position the
entire concept of right to property has to be viewed with a
different mindset than the mindset which was prevalent
during the period when the concept of eminent domain
was the embodied provision of fundamental rights. But
even now as provided under Article 300-A of the
Constitution the State can proceed to acquire land for
specified use but by enacting a law through State
Legislature or by Parliament and in the manner having
force of law."
82. This was a case, which was arising out of the
acquisition proceedings, and its co-related implications from
the tenancy laws, as applicable in the State of Uttarakhand,
particularly, from the percept of Kumaon Zamindari
Abolition and Land Reforms Act 1960. A major part of the
argument, which was based on vesting of the tenancy rights,
which has been pleaded by the learned counsel for the
petitioners has already been dealt with by this Court in the
earlier part of this judgement, but the said case was dealing
with the aspect pertaining to the effect of Sections 12, 4 and
19 of the Kumaon Zamindari Abolition and Land Reform Act
1960, though which is not the case here, which was even
pleaded or argued by the learned counsel for the petitioners,
based on valid documentary rights because here the argument
has been confined, by the petitioners claim of rights of
vesting under Sections 4 and 6 of the U.P. Z.A. & L.R. Act,
since they have claimed their possession and possessory
rights over the land in question since 1880, and the said
question and the effect of vesting has already been answered
by this Court in the light of the judgement of the Division
Bench in Laxman Lal (Supra), as to what would be the
effect of vesting of right over land, in question, in the light of
the constitutional mandate contained under Article 300A of
the Constitution of India.
83. The Constitution Bench in the aforesaid judgement had
observed, that the definition of a property, which is only the
scope the judicial exercise is to be undertaken in the light of
the fact, that the rights to property is no longer a
Fundamental Rights, the Hon'ble Apex Court has in its para
68 had laid down that in an incident of deprivation of a
property to meet the public purpose would still remains as to
be one of the most important facets for invocation of the
right of acquisition of private property and upto what extent,
it would be made amenable to a judicial review, in the light
of the field of legislation, which has been covered by the
Seventh Schedule, List-III, Entry-42 of the Constitution, is
made limited only for the purposes of determination of the
adequacy of compensation, on the deprivation of the
property, as a consequence of an acquisition, and hence, it
has been held in para 70, that when the acquisition is for a
public purpose and the public purpose is a facets, which is
satisfied, then the acquisition, it cannot be put to a judicial
review merely because of the violation of Part-III of the
Constitution of India.
84. The Constitution Bench judgement in its para 77,
which has already been extracted above, while considering
the implications of the Article 31, and its effect of repealment
made by virtue of the Constitution 44th Amendment Act
1978, and the effect of insertion of Article 300-A of the
Constitution of India, it had observed that the entire concept
of right of property though it has been diluted but still it has
to be viewed from a different percept and the circumstances,
which is prevalent during the situation at the time of
acquisition of the property, particularly, when the State under
its concept of authorities provided by the theory of 'eminent
domain' exercises its power for taking over the property, but
it is with the only rider, which has been attached as per the
observations made in para 77, that Article 300A of the
Constitution of India, has had to be protected and the State
can proceed to acquire the land for the specific public use by
enacting a law or by enforcing a law of acquisition to meet
the public requirement, and this Court is of the view, that
looking to the circumstances of the instant case, and the
backdrop of the instant case, necessitating acquisition, the
said aspect has quite elaborately been dealt with by this Court
in the above paragraphs, and no compromise of any nature
under whatsoever percept for the purposes of judicial review,
of an acquisition sought to be made for meeting the defence
requirement could be made subject to a judicial review,
because under the given set of circumstances, it cannot be
even thought of that the requirement of deployment of the
bordering outpost, adjoining to the Line of Actual Control
could ever be remotedly placed under a concept, to be outside
the domain of public purpose, rather it is more widely
applicable, because it is not only exclusively confined to the
public purpose, but it is rather confined to the purpose of the
nation and its defence, which is of an exclusive predominant
requirement.
85. The Constitution Bench of the Hon'ble Apex
Court in yet another judgement as reported in (2011) 9 SCC
1, K. T. Plantation Private Limited and another Vs. State
of Karnataka, had dealt with the concept, as to how a co-
related study could be made or is required to be made with
regard to the aspects of deprivation of the property of a
private individual and how and under which context, the
theory of 'eminent domain' could be made extendable and to
be made applicable for the purposes of facilitating a judicial
review of a Notification issued for acquiring the land to meet
a public purpose. The question, which was dealt with in the
said judgement, had laid down that though the right has been
vested with the State for taking over the property, to meet the
public purpose under the exercise of its inherent power of
'eminent domain', but then further the right, which has been
envisaged therein do not camouflage or cloud the rights of
the private persons, whose land is taken to get adequate
compensation as per law, as the same stands protected under
Article 300A of the Constitution of India to be read with
Article 14 of the Constitution of India, where a right of
compensation has had to be determined as per the nature of
the land acquired, its title, and the entitlement of the person
to receive the compensation as per law, whose land has been
said to be taken over to meet the public purpose.
86. In the said judgement of the Constitution Bench
of the Hon'ble Apex Court, factually, the Legislative
Assembly of State of Karnataka, had issued a Notification by
virtue of which, they have enforced the Acquisition and
Transfer Act of 1996, for the purposes of acquisition of land
and movable assets for the plantation of a private limited
organization and had bought a portion of the land, which was
held by the State, under the registered sale deed in the year
1991. In the said case, the Hon'ble Constitution Bench, in its
observation made and recorded in para 119, which is
extracted hereunder, had observed that while determining a
right of an individual under Article 300A of the Constitution
of India, the Courts cannot venture into a judicial review of
the validity of an acquisition on the touchstone of Article
300A of the Constitution of India, because the acquisition is a
concept, which is available to the State, i.e. the dominion
with which, the property is vested to exercise its power of
'eminent domain' which has to be harmoniously read with
regard to the rights reserved under Article 300A of the
Constitution of India, whenever there is a deprivation of a
property of a private persons. Para 119 of the said judgement
is extracted hereunder :-
"119. We will now examine the validity of the
Acquisition Act on the touchstone of Article 300-A of
the Constitution and examine whether the concept of
eminent domain be read into Article 300-A and in the
statute enacted to deprive a person of his property."
87. The Hon'ble Apex Court in the said judgement of
the Constitution Bench in its para 132 too, while dealing with
the concept of states exercise of powers under the theory of
'eminent domain' has extracted its theory, which is held to be
a natural and an absolute right, which is rather a convention
now in the society, but the exercise of natural and
conventional rights by the State for taking over the rights of
an individual, it had observed that the philosophy, as per the
thinkers, who had laid down the principles and the
circumstances, under which, the land could be taken over, it
had observed that the right to property on its owners are
absolute. But, it simultaneously definitely involves a definite
social responsibility too, if at all, it is required to be met and
had held, that a private property can be taken over to
establish the need of a public or to meet an urgent need of the
Country and then in that eventuality, the public interest
would always prevail over the civil or individual rights, but it
will not preclude a natural right of a private individual to
receive the compensation, if the ownership of the property is
divested from them (provided they have it) due to the
consequences of the acquisition. Para 132 of the said
judgement is extracted hereunder :-
"132. Eminent thinkers like Hugo Grotius,
Pufendorf, John Locke, Rousseau and William
Blackstone had expressed their own views on the right
to property. Lockean rhetoric of property as a natural
and absolute right but conventional in civil society has,
its roots in Aristotle and Aquinas, for Grotius and
Pufendorf property was both natural and conventional.
Pufendrof, like Grotius, never recognised that the rights
to property on its owners are absolute but involve
definite social responsibilities, and also held the view
that the private property was not established merely for
the purpose of "allowing a man to avoid using it in the
service of others, and to brood in solitude over his
hoard of riches." Like Grotius, Pufendorf recognised
that those in extreme need may have a right to the
property of others. For Rousseau, property was a
conventional civil right and not a natural right and
private property right was subordinate to the public
interest, but Rousseau insisted that it would never be in
the public interest to violate them."
88. In continuation thereto, the theory of 'eminent
domain' in the said judgement of the Constitution Bench was
dealt with, on the basis of the philosophy laid down by the
renowned philosopher Hugo Grotius, wherein, he has
observed that the principles of 'eminent domain' though it
does applies to the works, which are required for, or which
are to be done in order to meet up the public rights, which
may have an overlapping effect and precedence over the
private rights, but for the purposes of exercise of the powers
of theory of 'eminent domain' few basic pre requisites, which
are essentially required to be satisfied are :-
a) That the exercise of the powers of 'eminent domain'
is for meeting the public requirement;
b) The compensation from the public fund is required to
be ensured to be made payable to the land loser, who loses
his rights.
c) It has laid down that the theory of 'eminent domain'
is solely a matter of Statute and that would always be a
situation depending upon the Constitutional mandate of the
particular country, over which, the said principle is being
applied for acquiring the property to meet the public purpose.
89. It goes without saying, that in the instant case, the
land, in question, is being taken for the defence need and
under the normal human prudence and sensitivity of
perception towards nation, of the citizen of our nation, the
requirement of defence personnel, will always fall to be
within the ambit of the public purpose and its the public
right, which is to be protected too and hence, the acquisition
to meet up the aforesaid purpose would obviously overlap the
personal rights, as in the instant case.
90. In the said judgement, the Hon'ble Apex Court
while interpreting the effect of the application of the theory
of 'eminent domain' under the backdrop of the observations,
which had been made in the above paragraphs, which has
been extracted, had also dealt with the theoretical aspect of
the doctrine, that the principle of 'eminent domain' which
will still continue to apply, under the deleted Article 31of the
Constitution of India, and under the present Article 30 (1A)
of the Constitution of India, as inserted by the Constitution
(44th Amendment Act 1978) w.e.f. 20.06.1979, and under
the second proviso to Article 31A, as would be apparent,
which is in an exclusion from the implications of Article
300A of the Constitution of India.
91. In the present case, since there is an imminent
threat nor the case has been projected by the petitioners that
they would be deprived of an adequate compensation to be
made payable to them as per the provisions of the said Act,
the aforesaid principles and the safeguards taken by the
Hon'ble Apex Court in the said judgement will come to the
rescue to the State to apply the theory of 'eminent domain'
when there is a deprivation of the property, which has been
saved by Article 300A of the Constitution of India.
92. In the said judgement, in its para 166, the
implications of the rights protected under Article 300A of the
Constitution of India, has been dealt with in the parameters,
which has been laid down in para 166, which is extracted
hereunder:-
"166. Article 300-A, when examined in the light
of the circumstances under which it was inserted, would
reveal the following changes:
1. Right to acquire, hold and dispose of property has
ceased to be a fundamental right under the Constitution
of India.
2. Legislature can deprive a person of his property
only by authority of law.
3. Right to acquire, hold and dispose of property is
not a basic feature of the Constitution, but only a
constitutional right.
4. Right to property, since no more a fundamental
right, the jurisdiction of the Supreme Court under
Article 32 cannot be generally invoked, aggrieved
person has to approach the High Court under Article
226 of the Constitution."
93. Because the cessation of the Fundamental Right
of an individual to hold a property under the Constitution, it
has been protected as observed, that the Legislature cannot
deprive a person to hold the property except with the due
process of law and a right of acquisition and disposal of the
property for meeting the basic constitutional requirement of
the defence of the country, as it is in the instant case, the
strict principle of Article 300A of the Constitution of India,
since it protects the individual right over the property, and to
receive compensation on acquisition, but still, it has to be
ensured to be commensurated with the payment of adequate
compensation, which has always been a fact already pleaded
above and, as well as by the pleadings raised by the
respondents, that the appropriate compensation payable on
acquisition by the Government of India, had already been
deposited with the District Magistrate Pithoragarh, for
meeting up the requirement of acquisition for the defence of
the country. The Hon'ble Apex Court, in its para 180 of the
said judgement, while dealing with the aspect of public
purpose, where there is a deprivation of the property, it must
take place only for public purpose or public interest. It has
also laid down that the theory of 'eminent domain', which
applies only when a person is deprived of his property, when
it is specifically postulated to meet a public requirement and
the public need and in the public interest. It further provides
that merely an incidental benefit cannot be a reason for
deprivation of a property by acquiring the same, the
deprivation therein, has had to be lawful, fair and in the
interest of the country, or a public interest and once, it
satisfies the aforesaid parameters, it cannot be put to subject
to a judicial review, because it is rather the Legislature,
which has to determine the aforesaid aspects, and particularly
in the instant case, as per the correspondence referred to
above, based on the decision taken by the Ministry of
Defence and Ministry of Home Affairs, the steps, for which,
was taken ever since 2009, looking to the persistent threat
perception of an enemy aggression, the acquisition in the
instant case, will definitely would fall to be to meet a specific
public purpose and the defence requirement of the country,
which is in the larger interest of the country and its each
citizen and its defence. If the concept of public purpose, as it
has been observed in the aforesaid judgement, though it has
been most extensively utilised, whenever an acquisition is
made to meet a public purpose as deciphered in the
acquisition Notification, but the condition precedent for
invoking Article 300A of the Constitution of India, has not
been ruled out to be made applicable and, which in the
instant case too, has been specifically protected.
94. Similar view, while answering the aforesaid two
concepts of "public purpose" and theory of 'eminent domain'
in the aforesaid judgment of the Constitution Bench, the
references which has been drawn thereunder has been
envisaged under its sub-para (e) of para 221 of the said
judgement, which provides that the existence of the public
purpose is a precondition for deprivation of a person from the
property, which is protected under Article 300A of the
Constitution of India, and the right to claim the compensation
for the deprivation has had to be legislatively an inbuilt
mechanism under the Act itself under which the acquisition is
to be made for depriving an individual of his property to
satisfy the need of the State and that would exclusively
depend upon the scheme of the Statute, the legislative policy,
object and purpose and various other related factors, which
has to be taken into consideration in the decision making
process, as it has been provided under the Act of 2013, that
for acquiring a land, the social impact assessment has to be
made; though the strict principle would not apply in the
present case, because of the exemption extracted by Section 9
of the Act itself, which eradicates the applicability of Section
40 of Act of 2013. Sub-para (e) of para 221 is extracted
hereunder :-
"221. We, therefore, answer the reference as
follows:
(a) ........
(e) Public purpose is a precondition for deprivation
of a person from his property under Article 300-A and
the right to claim compensation is also inbuilt in that
article and when a person is deprived of his property the
State has to justify both the grounds which may depend
on scheme of the statute, legislative policy, object and
purpose of the legislature and other related factors."
95. Another aspect, which would be also of prime
importance for dealing with the controversy, while the
petitioners gave challenge to the Notification under Section
11 (2) of Act of 2013, would be from the point of view of
theory of "eminent domain". The theory of "eminent
domain" grants an exclusive and inherent dominant power
with the Government, which is the supreme owner of any
land falling within the territory of the Nation, to take over the
land and property, though under the terms and conditions of
the given set of law, in order to meet out the emergent
country requirement, due to any army aggression, army
preparedness to face any sudden enemy insurgency, National
calamity or other areas of such emergent need of the country
and for the country, where time always plays an important
pivotal role and where it is exclusively only the need of the
country at large, which is to be considered. The aspect of
eminent domain has been considered by the Hon'ble Courts
in various judgements, which are being detailed and dealt
hereunder.
96. Though, this Court has already dealt with as to
what are the basic elements, which are required to satisfy the
exercise of powers by the State under the theory of 'eminent
domain' but the basic elements, which were required to be
satisfied for applying the wider principle of theory of
'eminent domain' has been considered as back as in a
judgement which has been reported in AIR 1953 Assam 84,
Mahindra Mohan Lahiri and others Vs. The State of
Assam, wherein, the constitutional validity of an Estate Act
was put to challenge for transfer of the land for the public
purpose and for the management of the State Government. In
the said judgement, it had dealt the aspect in its para 13 and
15, which is extracted hereunder :-
"13. The answer to Mr. 'Ghose's contention based
upon Article 19(1)(f) read with Clause (5) of Article
19 is this. When an Act of the State Legislature is
covered by item 9 in the 1935 Act, it is an Act passed
by the State in the exercise of its power of eminent
domain, and is, therefore, not subject to the provisions
of Article 19(1)(f), Constitution of India, in precisely
the same way as when an Act passed by the State
Lagislature in the exercise of its police power depriving
a person of his property by reason of his personal
incapacity or disability or in the interests of public
order, is not subject to the provisions of Article
19(1)(f). This aspect of the case has been considered by
their Lordships of the Supreme Court in two cases
involving interpretation of Article 21, Constitution of
India. Article 21 is in these terms :
"21. No person shall be deprived of his life
or personal liberty except according to procedure
established by law."
Article 31 (1), Constitution of India says :
"31. (1) No person shall be deprived of his
property save by authority of law".
Referring to Article 21 and its effect on Article
19, Kama C. J., observed :
"Deprivation (total loss) of personal liberty,
which is sought to be protected by the expression
'personal liberty' in Article 21, is quite different
from restriction (which is only a partial control) of
the right to move freely (whick is relatively a
minor right of a citizen) as safeguarded by Article
19. Deprivation of personal liberty has not the
same meaning as restriction of free movement in
the territory of India. Therefore, Article
19(5) cannot apply to* a substantive law
depriving a citizen of personal liberty. The
contention that the word 'deprivation' includes
within its scope 'restriction' when
interpreting Article 21, is not acceptable."
These observations apply with equal force to
the interpretation of Article 31. Where, therefore,
a person is deprived of his property by authority
of law, the question of the infringement of
fundamental right of property guaranteed
by Article 19(1)(f) does not arise and equally, the
question of restrictions upon that right does not
arise, for the person having (sic) been deprived of
his property either in the exercise of the State's
police power or in the exercise of its power of
eminent domain.
15. Our conclusion then is that the impugned Act
is a valid Act and 'intra vires' the Assam (Legislature;
that the question of the infringement of fundamental
right of property guaranteed by Article 19(1)(f) does
not arise, the Act having been passed in the exercise of
the State's power of eminent domain; that the presence
of public purpose is demonstrable. "
97. There is the aforesaid authority of 1953. It has
been observed, that when a person is deprived to his property
by an authority of law, as it happens to be in the instant case,
the question of infringement of a right over a property, even
though, it no more exists under existing law to be a
constitutional right, it does not arise for consideration
because the person has been deprived of his right over the
property by the exercise of powers of the State under the
theory of 'eminent domain' in accordance with law, and
hence, it meets the very purpose, and hence, as per the
opinion of this Court, it meets the very purpose, which has
been provided and protected of the land owner under Article
300A of the Constitution.
98. The Hon'ble Apex Court in a judgement as
reported in (2006) 2 SCC, 545, State of Bihar and others
Vs. Project Uchcha Vidya, Sikshak Sangh and others,
while reiterating to the concept of the doctrine of 'eminent
domain', and the principles, which are required to be adhered
to has been laid down in its para 65 and 66, which is
extracted hereunder, as to under what circumstances, the
taking over of the land for the requirement of the
Government could be embodied to be brought within the
doctrine of theory of 'eminent domain'. Para 65 and 66 of the
said judgement is quoted hereunder :-
"65. The word "takeover" would mean that the
Government had thought of taking over of the properties
and assets of the schools together with the teaching and
non-teaching staff. Takeover of schools in the context of
the policy decision of the State does not appear to be an
expression of an intendment for complete takeover of the
management of the school. In the former sense takeover of
such schools would be violative of Article 300-A of the
Constitution. Article 300-A embodies the "doctrine of
eminent domain" which comprises two parts, (i)
acquisition of property in public interest; and (ii) payment
of reasonable compensation therefor.
66. In Jilubhai Nanbhai Khachar this Court held:
(SCC p. 622, para 34)
"34. The right of eminent domain is the right of
the sovereign State, through its regular agencies, to
reassert, either temporarily or permanently, its
dominion over any portion of the soil of the State
including private property without its owner's consent
on account of public exigency and for the public good.
Eminent domain is the highest and most exact idea of
property remaining in the Government, or in the
aggregate body of the people in their sovereign
capacity. It gives the right to resume possession of the
property in the manner directed by the Constitution and
the laws of the State, whenever the public interest
requires it. The term 'expropriation' is practically
synonymous with the term 'eminent domain'.""
99. In a judgement, which is reported in AIR 2007
SC 471, Daulat Singh Surana and others Vs. First Land
Acquisition Collector and others, it was dealing with the
circumstances of a case of acquisition, which was being
undertaken by the State of West Bengal, where the
fundamental underlying principle was the interest and claim
of the community as a whole, whose interest has been held to
be superior to the interest of the individual, because in the
said case, the land was proposed to be acquired for the safety
and the security of the people. Hence, it was observed in the
said case, that the power of compulsory acquisition as
prescribed under the terms of 'eminent domain' therein in
the said case can be exercised in the interest and for the
welfare of the people and particularly, the welfare of the
people, which in the instant case, is in league with the
preamble of the Constitution to constitute a strong integrated
country, where safety, security, health and welfare of the
person residing in it, i.e. its citizen and the prosperity of the
country as a whole would be falling within the zone of public
purpose, where the exercise of power of 'eminent domain'
could be said to have been rightly exercised by the State, as it
has been held by the said judgement in para 39, 40, 41, while
dealing with the wider concept of public purpose and in para
73, 74, 75 and 76, where the harmonious construction to meet
out the "public purpose" and 'eminent domain' has been laid
down by the Hon'ble Apex Court. Para 39, 40, 41, 73, 74, 75
and 76 are extracted hereunder :-
"39. Public purpose has been defined in the Land
Acquisition Act as under:
"3. (f) the expression 'public purpose' includes--
(i) the provision of village sites, or the
extension, planned development or improvement of
existing village sites;
(ii) the provision of land for town or rural
planning;
(iii) the provision of land for planned
development of land from public funds in pursuance
of any scheme or policy of Government and
subsequent disposal thereof in whole or in part by
lease, assignment or outright sale with the object of
securing further development as planned;
(iv) the provision of land for a corporation
owned or controlled by the State;
(v) the provision of land for residential purposes
to the poor or landless or to persons residing in areas
affected by natural calamities, or to persons
displaced or affected by reason of the
implementation of any scheme undertaken by
Government, any local authority or a corporation
owned or controlled by the State;
(vi) the provision of land for carrying out any
educational, housing, health or slum clearance
scheme sponsored by Government or by any
authority established by Government for carrying out
any such scheme, or, with the prior approval of the
appropriate Government, by a local authority or a
society registered under the Societies Registration
Act, 1860 (21 of 1860), or under any corresponding
law for the time being in force in a State, or a
cooperative society within the meaning of any law
relating to cooperative societies for the time being in
force in any State;
(vii) the provision of land for any other scheme of
development sponsored by Government or, with the
prior approval of the appropriate Government, by a
local authority;
(viii) the provision of any premises or building for
locating a public office,but does not include
acquisition of land for companies."
40. Public purpose will include a purpose in which
the general interest of community as opposed to the
interest of an individual is directly or indirectly involved.
Individual interest must give way to public interest as far
as public purpose in respect of acquisition of land is
concerned.
41. In the Constitution of India, some guidelines can
be traced as far as public purpose is concerned in Article
37 of the Constitution. The provisions contained in this
Part (directive principles of the State policy) shall not be
enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of
the country. It shall be the duty of the State to apply these
principles in making laws.
73. Public purpose cannot and should not be
precisely defined and its scope and ambit be limited as far
as acquisition of land for the public purpose is concerned.
Public purpose is not static. It also changes with the
passage of time, needs and requirements of the
community. Broadly speaking, public purpose means the
general interest of the community as opposed to the
interest of an individual.
74. The power of compulsory acquisition as
described by the term "eminent domain" can be exercised
only in the interest and for the welfare of the people. The
concept of public purpose should include the matters, such
as, safety, security, health, welfare and prosperity of the
community or public at large.
75. The concept of "eminent domain" is an essential
attribute of every State. This concept is based on the
fundamental principle that the interest and claim of the
whole community is always superior to the interest of an
individual.
76. Public purpose for which the premises was
required in the instant case was not questioned seriously.
As a matter of fact, the State of West Bengal has been
using the premises in question for more than six decades
for the safety and security of the people by having an
office of the Deputy Commissioner of Police (Security
Control). Therefore, by no stretch of imagination, it can be
said that the premises was not required by the State
Government for the interest and welfare of the people or
there was no public purpose involved in acquiring the
premises in question."
100. In a case, which was arising out of the judgement
of the Kerala High Court, as reported in (2009) 8 SCC 46,
State of Kerala and another Vs. Peoples Union for Civil
Liberties, Kerala State Unit and others, it was dealing
with the case, where Kerala Government has enacted a
legislation for the purposes of restriction of transfer of land
and restoration of alienated land of the Scheduled Tribes of
the State and for the recovery of the Tribal land from non
tribal occupants. Initially, the matter was decided by the
learned Single Judge of the Kerala High Court, and later on,
it travelled before the Full Bench of the Kerala High Court,
and ultimately, the right of reservation given to the
Scheduled Tribes therein, for the purposes of restoration of
the land belonging to them under Sections 5 (1) and 5 (2) and
Section 6 and Section 22 of the Act of 1999, which was put
to challenge before the Kerala High Court, and it was held
that a person acquires an indefeasible rights over the land, but
then, still the owner of land, he can be deprived therefrom it
only by taking recourse to the prevalent law and the exercise
of its power under the theory of 'eminent domain", and that
is what has been laid down in para 87, 88 and 89 of the said
judgement as to in what and under what circumstances, the
concept or the exercise of power under the theory of 'eminent
domain' could be exercised by the State even in relation to
taking over of the land of the Tribal Community. Para 87, 88
and 89 is extracted hereunder:
"87. The statutory provisions, therefore, must be
interpreted in the light of the constitutional provisions.
The decisions of this Court, therefore, are clear and
unambiguous. In a case involving members of the
Scheduled Tribes living in Scheduled Area the period of
limitation can be extended, but it is not permissible in
respect of an area which has not been declared to be a
Scheduled Area.
88. When a person acquires an indefeasible right,
he can be deprived therefrom only by taking recourse
to the doctrine of eminent domain. If a person is sought
to be deprived of an indefeasible right acquired by him, he
should be paid an amount of compensation. In a case of
this nature, therefore, where an amount of compensation
has not actually been tendered, the vendees of the land
could not be deprived of their right to be dispossessed. In
that view of the matter, a distinction must be made
between a case where an amount of compensation has
been paid and in a case where it has not been.
89. If a vested right has not been taken away, the
question of applicability of Article 14 of the Constitution
of India would not arise. The High Court, however,
proceeded to apply Article 14 of the Constitution of India
on the premise that the provisions of the 1999 Act clearly
seek to destroy the right conferred on Scheduled Area by
Act 31 of 1975. The approach of the High Court being not
correct, the same cannot be sustained."
101. The Hon'ble Apex Court in yet another judgement
as reported in (2010) 10 SCC 43, Amarjit Singh and others
Vs. State of Punjab and other, while dealing with the
concept and holding thereof that the rights envisaged under
Article 300A of the Constitution of India, rests upon the
doctrine of theory of 'eminent domain' to be exercised by the
State. It provides that the exercise of power for theory of
'eminent domain' for the public need, the individual
rights of ownership over the land must be replaced to the
larger public need and where the acquisition is made for the
public purpose and in accordance with the procedure
established by law, after payment of the reasonable and fair
compensation under the parameters laid down by the
Legislature, then no fault could be found in acquiring the
land for public need. Relevant para 31, 36, 47 and 48 are
extracted hereunder :-
" 31. The term "expedient" appearing in Section 178
of the Act has not been defined. Black's Law Dictionary,
however, assigns the expression "expedient" the following
meaning:
"Appropriate and suitable to the end in view -
Whatever is suitable and appropriate in reasons for the
accomplishment of a specified object."
36. Power of exemption reserved in favour of the
Government under Section 178 of the Punjab Regional
and Town Planning and Development Act, 1995 is also
intended to relieve hardship arising from the operation of
the Act. It is intended to enable the Government to deal
with situations in which circumstances independent of the
question of hardship render it expedient to do so by
granting exemption. A liberal construction has, therefore,
to be placed upon the provisions of Section 178(2) so that
exercise of power for good and bona fide reasons is not
defeated.
47. Article 300-A of the Constitution rests on the
doctrine of eminent domain and guarantees a
constitutional right against deprivation of property save by
authority of law. It mandates that to be valid the
deprivation of property must be by authority of law. That
such deprivation in the present case is by the authority of
law was not disputed, for it is common ground that the
property owned by the appellants has been acquired in
terms of the provisions of the Land Acquisition Act, 1894
which is a validly enacted piece of legislation.
48. It is also not in dispute that the provisions of the
Land Acquisition Act invoked by the State for the
acquisition under challenge provide for payment of
compensation equivalent to the market value of the
property as on the date of the preliminary notification
apart from other benefits like solatium for the compulsory
nature of the acquisition, additional compensation and
interest, etc. The sum total of all these amounts
undoubtedly constitutes a reasonable compensation for the
land acquired from the expropriated owners. Neither
Article 300-A of the Constitution nor the Land Acquisition
Act make any measures for rehabilitation of the
expropriated owners a condition precedent for compulsory
acquisition of land. In the absence of any such obligation
arising either under Article 300-A or under any other
statutory provision, rehabilitation of the owners cannot be
treated as an essential requirement for a valid acquisition
of property."
102. In a judgement as reported in (2011) 5 SCC 553,
Radhy Shyam and others Vs. State of Uttar Pradesh and
others, was yet again a case, where a Notification for
acquisition under Section 4 (1) was put to challenge, where
the land was sought to be acquired for the purposes of a
Planned Industrial Development in District by the
Development Authority of Greater Noida. The Hon'ble Apex
Court, where the challenge was given to the notification of
acquisition, in its para 16, 17 and 77, which is extracted
hereunder, has widely dealt with as to the circumstances
under which, the powers of inherent exercise of the theory of
'eminent domain' which is vested with the sovereign State
could be exercised to take a property belonging to a private
individual to be utilised for the public purposes. The said
judgement lays down that the concept of public purpose or
public interest which cannot be or rather should not be
apparently used as a shield to take the land belonging to the
private owner. The competent authority before acquiring the
property and invoking an urgency clause cannot erroneously
for no valid reason could avoid to exercise its power to
acquire the property without complying with the provisions
contained under, the then Section 5 of the Land Acquisition
Act, by invoking the urgency clause.
"16. At the outset, we record our disapproval of the
casual manner in which the High Court disposed of the
writ petition without even calling upon the respondents to
file counter-affidavit and produce the relevant records. A
reading of the averments contained in Paras 11 and 16 and
Grounds A and F of the writ petition, which have been
extracted hereinabove coupled with the appellants'
assertion that the acquisition of their land was vitiated due
to discrimination inasmuch as land belonging to influential
persons had been left out from acquisition, but their land
was acquired in total disregard of the policy of the State
Government to leave out land on which dwelling units had
already been constructed, show that they had succeeded in
making out a strong case for deeper examination of the
issues raised in the writ petition and the High Court
committed serious error by summarily non-suiting them.
17. The history of land acquisition legislations shows
that in 19th Century, Bengal Regulation 1 of 1824, Act 1
of 1850, Act 6 of 1857, Act 21 of 1863, Act 10 of 1870,
Bombay Act 28 of 1839, Bombay Act 17 of 1850, Madras
Act 20 of 1852 and Madras Act 1 of 1854 were enacted to
facilitate the acquisition of land and other immovable
properties for roads, canals, and other public purposes by
paying the amount to be determined by the arbitrators. In
1870, the Land Acquisition Act was enacted to provide for
proper valuation of the acquired land. That Act envisaged
that if the person having interest in land is not agreeable to
part with possession by accepting the amount offered to
him, then the Collector may make a reference to the civil
court. The 1870 Act also envisaged appointment of
assessors to assist the civil court. If the court and the
assessor did not agree on the amount then an appeal could
be filed in the High Court. This mechanism proved
ineffective because a lot of time was consumed in
litigation. With a view to overcome this problem, the
legislature enacted the Act on the line of the English
Lands Clauses Consolidation Act, 1845. However, the
landowners or persons having interest in land did not have
any say in the acquisition process either under pre-1894
legislations or under the 1894 Act (unamended). They
could raise objection only qua the amount of
compensation and matters connected therewith. The
absence of opportunity to raise objection against the
acquisition of land was resented by those who were
deprived of their land. To redress this grievance, Section
5-A was inserted in the Act by amending Act 38 of 1923.
77. From the analysis of the relevant statutory
provisions and interpretation thereof by this Court in
different cases, the following principles can be culled out:
(i) Eminent domain is a right inherent in every
sovereign to take and appropriate property belonging to
citizens for public use. To put it differently, the
sovereign is entitled to reassert its dominion over any
portion of the soil of the State including private
property without its owner's consent provided that such
assertion is on account of public exigency and for
public good - Dwarkadas Shrinivas v. Sholapur Spg.
and Wvg. Co. Ltd., Charanjit Lal Chowdhury v. Union
of India and Jilubhai Nanbhai Khachar v. State of
Gujarat.
(ii) The legislations which provide for compulsory
acquisition of private property by the State fall in the
category of expropriatory legislation and such
legislation must be construed strictly -- DLF Qutab
Enclave Complex Educational Charitable Trust v. State
of Haryana; State of Maharashtra v. B.E. Billimoria
and Dev Sharan v. State of U.P.
(iii) Though, in exercise of the power of eminent
domain, the Government can acquire the private
property for public purpose, it must be remembered that
compulsory taking of one's property is a serious matter.
If the property belongs to economically disadvantaged
segment of the society or people suffering from other
handicaps, then the court is not only entitled but is
duty-bound to scrutinise the action/decision of the State
with greater vigilance, care and circumspection keeping
in view the fact that the landowner is likely to become
landless and deprived of the only source of his
livelihood and/or shelter.
(iv) The property of a citizen cannot be acquired by
the State and/or its agencies/instrumentalities without
complying with the mandate of Sections 4, 5-A and 6 of
the Act. A public purpose, however laudable it may be
does not entitle the State to invoke the urgency
provisions because the same have the effect of
depriving the owner of his right to property without
being heard. Only in a case of real urgency, can the
State invoke the urgency provisions and dispense with
the requirement of hearing the landowner or other
interested persons.
(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private
property without complying with the mandate of
Section 5-A. These provisions can be invoked only
when the purpose of acquisition cannot brook the delay
of even a few weeks or months. Therefore, before
excluding the application of Section 5-A, the authority
concerned must be fully satisfied that time of few
weeks or months likely to be taken in conducting
inquiry under Section 5-A will, in all probability,
frustrate the public purpose for which land is proposed
to be acquired.
(vi) The satisfaction of the Government on the issue
of urgency is subjective but is a condition precedent to
the exercise of power under Section 17(1) and the same
can be challenged on the ground that the purpose for
which the private property is sought to be acquired is
not a public purpose at all or that the exercise of power
is vitiated due to mala fides or that the authorities
concerned did not apply their mind to the relevant
factors and the records.
(vii) The exercise of power by the Government under
Section 17(1) does not necessarily result in exclusion of
Section 5-A of the Act in terms of which any person
interested in land can file objection and is entitled to be
heard in support of his objection. The use of word
"may" in sub-section (4) of Section 17 makes it clear
that it merely enables the Government to direct that the
provisions of Section 5-A would not apply to the cases
covered under sub-section (1) or (2) of Section 17. In
other words, invoking of Section 17(4) is not a
necessary concomitant of the exercise of power under
Section 17(1).
(viii) The acquisition of land for residential,
commercial, industrial or institutional purposes can be
treated as an acquisition for public purposes within the
meaning of Section 4 but that, by itself, does not justify
the exercise of power by the Government under
Sections 17(1) and/or 17(4). The court can take judicial
notice of the fact that planning, execution and
implementation of the schemes relating to development
of residential, commercial, industrial or institutional
areas usually take few years. Therefore, the private
property cannot be acquired for such purpose by
invoking the urgency provision contained in Section
17(1). In any case, exclusion of the rule of audi alteram
partem embodied in Sections 5-A(1) and (2) is not at all
warranted in such matters.
(ix) If land is acquired for the benefit of private
persons, the court should view the invoking of Sections
17(1) and/or 17(4) with suspicion and carefully
scrutinise the relevant record before adjudicating upon
the legality of such acquisition."
103. The said judgement has provided, that it is always
to be satisfied by the competent authorities acquiring the
land, when the urgency clause is being invoked that it is the
real emergent need of the State to take over the land and it
deals with the aspect of real emergent necessity, that the
exercise of powers of theory of 'eminent domain' could only
be actually exercised, when the delay would brook the very
purpose of acquisition for public need.
104. If the said principle is made applicable under the
circumstances of the present case, apparently the Notification
has attracted the exemption clause under Section 9 of the Act
of 2013, where the invocation of Section 9 of the Act of
2013, has eradicated the application of Sections 40 and 21 of
the Act of 2013. The emergent requirement or the emergent
need, as per the opinion of this Court, has always to be
considered as to what is the need and purpose of immediate
requirement, which has been expressed for acquiring a land.
Few months delay in acquiring the land for meeting the need
of the road or for providing the residential accommodation to
the particular oppressed community for building of an
official accommodations, they can be postponed or deferred
and under the particular circumstances of the case be treated
as to be not an emergent need. But, if that is read and
correlated in the circumstances of the present case, I am of
the view that the intention of the acquisition under the
impugned notification does not mean an actual enemy army
action, before the land is acquired, because once it is dealing
with the aspect of defence of the country, it goes without
saying that the acquisition proceedings cannot be delayed to
wait for an actual insurgency to chance, because looking to
the topography of the land sought to be acquired and the
purpose of deployment of well equipped armed forces with
heavy mechanical devices of long-range firing, it requires
consideration of an important aspect of war preparedness and
element of preparedness particularly from the concept of
defence of a country itself would constitute to be an urgent
requirement, which cannot be delayed in any manner and that
too, in the present case, when it was assessed after 1962
Indo-China war, when for the first time, the border outpost
was deployed in 1968, and later on, it was substituted by the
decision taken by the Government of India, for the
deployment of 14th Battalion of ITBP to defend the two
passes, which were the easy accessible zone of entry by the
enemy army of the neighbouring country, China in the Indian
territory, and as per the correspondences made by the
Ministry of Defence in league with decision with the
Ministry of Home Affairs, it was and it had an element of
preparedness, which cannot await an actual army action,
hence it was an emergent military requirement, which could
not have been delayed, for any whatsoever valid reason,
when it effects the defence of the Country.
105. Thus, the nature of acquisition in the present case,
it satisfies all the elements, the public purpose; the public
need; the need of the defence of the country; the
preparedness of the military personnel to face any sudden
military insurgency; to meet the requirement of the defence
personnel at a higher altitude war fare at 14,000 feet above
sea level, in the higher Himalaya; and above and overall, the
defence of the country is to be ensured to be sufficient
enough to over track and sideline the personal requirement,
even if it is at all to be given some protection under the law,
because the law has to be rationally made applicable and
liberally construed considering the requirement of the
country, when it comes to its defence.
106. In a recent judgement of the Hon'ble Apex Court
as reported in (2020) 9 SCC 356, Hari Krishna Mandir
Trust Vs. State of Maharashtra and others, this was a
case, where it related to a controversy pertaining to a private
road in Pune, which was being declared as a road owned by
the Pune Municipal Corporation, though as per the records, it
was recorded in the name of the private person and as a
private road. The Hon'ble Apex Court in para 96 and 97 of
the said judgement, while analysing the effect of Article
300A of the Constitution of India, under the doctrine of
'eminent domain' had laid down that the theory of 'eminent
domain' widely comprises of a prior satisfaction of two
elements (i) that the possession of the property has been
taken over for exclusively for public purpose and in public
interest and (ii) taking over of the possession under the
concept of public purpose or public interest, has had to be
followed with a payment of reasonable compensation. The
said judgement has held that the right of property, though it
may not be said to be a Fundamental Right, any more after
the Constitution Amendment, but still, it is a constitutional
right, which is protected under Article 300A of the
Constitution of India, which has a basic structure of
protection of the human rights and the executive or
administrative decision cannot be arbitrarily be exercised
dehors the spirit of Article 300A of the Constitution of India,
for depriving of a person of his private right under the
concept of public requirement for public need, though which
could be done in the exercise of theory of 'eminent domain',
when the second parameters of awarding reasonable
compensation as per the law is met out. Para 96 and 97 is
extracted hereunder :-
"96. The right to property may not be a
fundamental right any longer, but it is still a constitutional
right under Article 300-A and a human right as observed
by this Court in Vimlaben Ajitbhai Patel v. Vatslaben
Ashokbhai Patel. In view of the mandate of Article 300-A
of the Constitution of India, no person is to be deprived of
his property save by the authority of law. The appellant
Trust cannot be deprived of its property save in
accordance with law.
97. Article 300-A of the Constitution of India
embodies the doctrine of eminent domain which
comprises two parts, (i) possession of property in the
public interest; and (ii) payment of reasonable
compensation. As held by this Court in a plethora of
decisions, including State of Bihar v. Project Uchcha
Vidya, Sikshak Sangh; Jilubhai Nanbhai Khachar v. State
of Gujarat; Bishambhar Dayal Chandra Mohan v. State of
U.P., the State possesses the power to take or control the
property of the owner for the benefit of public. When,
however, a State so acts it is obliged to compensate the
injury by making just compensation as held by this Court
in Girnar Traders v. State of Maharashtra"
107. In view of the aforesaid authorities refer to, this
Court has also to look into the controversy from the concept
that the concept of public purpose has also been dealt with in
a book titled as the Concept of "Public Purpose" authored
by Mr. J. Narain. In the said book, yet again, it has
provided, that the power of taking over of the land by the
State should always be in a textual context of social and
economic reforms and its practical larger social consequences
having bearing on the peaceful and safe living of the citizen
of the country.
108. In the said book, it had referred that no doubt
technically speaking, the judiciary still has a final power to
determine, whether the public purpose has been served in the
given set of circumstances of the acquisition case, or not, but
the nature and its complexity, which may be attributed to be
assessed in future of a modern State, in general, and in the
wider interest of the nation, particularly to immensely
eradicate the social and economical problems, which may
occur, such reforms, which are the basic need of the country,
it gives a greater discretion to the Government in choosing
the need to meet up the social welfare and the social public
objective to develop and to secure the country from its any
future practical complexities, it could as per opinion of this
Court would include too the need of defence of country and
need of armed forces of the country.
109. In yet another book, authored by Schwartz, which
was "The Commentary on the Constitution of the United
States", while referring to, two of the leading judgements of
the Rindge Company Vs. Los Angeles and Bragg Vs.
Weaver, it has provided that the "the necessity for
appropriating a private property for public use, is not a
judicial question. This power inherently resides in the
Legislature and may either be exercised by the Legislature or
under the power delegated to the public officer". It further at
its page number 259 provides "whether it is necessary, and
eminent that the given property be taken, are legislative
questions and no matter, who may be charged with and by
the decision and hearing thereon is not essential, if due
process is being followed with as per law". "The
constitutional requirements are satisfied as soon as the
property owner is assured of a judicial forum, in which, he
could demonstrate, if he can take over the issue that the land
is taken over for legitimate public purpose and establish the
value of his property and the damages, which he or she
would be entitled to".
110. Meaning thereby, in view of the aforesaid
principle also, the enquiry over an object of acquisition for
the public purpose has got a very limited implication to the
context of determining the element and the factors required
for public purpose by the Courts, even the constitutional
courts. However, the conclusion drawn for necessitating for
taking over of private property for public purpose is a
exclusive legislative determination, and it has to be left to the
domain of the Legislative mandate itself or the law, which
governs such subjects and cannot be made to be a subject
matter of judicial review.
111. The constitutional requirements are satisfied, as
long as the property owners are assured and provided with
the judicial forum, in which, one can demonstrate, if he could
sustain the rights that the taking over of the land is not for the
purposes to the legitimate public purpose or if he is able to
establish the value of his property and the damages, to which,
he will be entitled to. The only safeguard under law for
acquiring the private property for public need, and
particularly, the need of the nation and its defence, the
protection under Article 300A of the Constitution is to be
safeguarded for securing a legitimate compensation of the
damages or the value of the property, which has been thus
taken over.
112. The enquiry into that aspect is limited only to the
extent of determining the existence of a public purpose and
one the aspect, which is quite conclusive however, that the
necessity of taking private property for public purpose is a
Legislature determination, and it will be exclusively for the
Legislature or the law, such as framed under the Constitution
and the Ministerial Law of Administration, for taking over
the property for the public need, and that is why, if the said
intention of acquisition for the public purpose is read in
context with the constitutional mandate of other countries, it
had rather consistently laid down, that there is no immunity
for the State in acquisition of a private property, that could
not be mitigated by the powers of in-appropriation for public
purpose, but by virtue of the rationale application of the
theory of eminent domain, where the Courts imposed upon to
determine, it in the context of natural justice, as to whether,
the exercise of powers of eminent domain are sustainable to
the object and public purpose, which has been taken as to be
the foundation for acquiring the land.
113. This Court for all the logics and reasonings
already assigned above is of the view, that apart from the
constitutional mandate and sprit of the applicable law about
the relevance of the country, the integration of the country,
assuring a peaceful living to the citizens of the country, this
Court is of the view that it could only be assumed to a citizen
when they are secured when the country's defence structure
and its strength and its preparedness to meet any sudden,
military crisis is augmented by providing, its defence
personnel or any other such agencies with sufficient
infrastructural facilities, and particularly, at the strategic
point, like the one, in question, where India is sharing an
international border, which is hardly 20 to 25 km. away from
the land in question, adjoining to the Line of Actual Control.
It is at this juncture, that the relevance of defence of the
country has been mythologically considered too in various
Vedas, and particularly, certain excerpts of the Atharva
Vedas are required to be considered at this stage of the
judgment, in order to determine the importance and necessity
of the Notification from the perspective of the need of the
defence of the country.
114. Lastly, the concept of the importance of a country
and its defence is not an isolated or a new theory, which has
been developed or discussed by the modern law, as it has
been now being legislated by the different countries, but
rather, it is an aged old theory, which was considered by the
mythological Vedas and ancient scriptures of our country, for
example Atharva Vedas in its Clause 5/19/4 has dealt with
the requirement and the necessity of the defence of the
country. The following extracts from the Atharva Vedas
also supports the acquisition intended to be made by the
impugned notification. The relevant part is extracted
hereunder :-
"czãxoh iP;ekuk ;kor~ lkfHkfotaXMgsA
rstks jk'VªL; fugfUr u ohjks tk;rs o`'kk AA
vFkoZosn [email protected]@4"
115. Literally, the basic intention of the ancient
scriptures of our country, in view of the above excerpts from
the Atharva Vedas, it had been rather prophesized by the
ancient scriptures and sermons given by the priest and the
emperors, it rather casts a duty that the basic inherent right
and duty to be performed by an emperor of the Country is to
ensure the safety of its frontier, as to be its prime objective to
safeguard it from any army aggressions, and hence, the
acquisition herein, also forms and falls to be within the
intention of the aforesaid Sloak of the Atharva Vedas, where
national importance has been emphasized as to be one of the
predominant duty of the emperor to save the country, and
which would be the intention of the present Notification too
for acquiring the land for defence purposes.
116. In Atharva Vedas Samhita, Part-II, in its
Chapter-24, had dealt with the importance of the country in
its para 4750, wherein, it had provided that the human
community, as a whole of particular country, has had to make
all efforts for the prosperity and the defence of the country.
The relevant part is extracted hereunder :-
"vFkoZosn lafgrk Hkkx&„
[„† jk'Vªlwä]
[_f'k&vFkokZA nsork&eU=ksd vFkok czã.kLifrA
NUn&vuq'Vqi~] †&ˆ]Š f='Vqi~] ‰ f=iknk'kha xk;=h]
†‰‡0- ;su nsoa lforkja ifj nsok v/kkj;u~A rsusea czã.kLirs
ifj jk'Vªk; /kŸku AA
gs czã.kLirs ! nsoksa us ftl izdkj lforknso dks pkjksa vksj ls
/kkj.k fd;k] mlh fof/k ls bl egku~ "kkfUr ds vuq'Bkrk ;teku dks
jk'Vª dh lqj{kk ds fy, l=) ¼rRij½ djsa AAƒ AA"
117. In fact, if the principles laid down in the above
excerpts of Atharva Vedas is taken into consideration, it had
rather provided that the security of the nation has to be made
in a manner, in which, when Sita was abducted by Ravana
and she was kept in Ashok Vatika, in fact, she was
safeguarded by the Gods from all four corners in order to
protect her from any harm to be caused to her and, in fact, it
is the derivation of the said intention that Clause 4750 of the
Atharva Vedas, has provided that the country has to be
similarly guarded in the manner, in which, Sita was guarded
by the Gods, when she was confined under the Ravana's
domain in the Lanka, and hence, it has provided that all types
of penance, conviction and commitment has had to be made
in the interest and for the security of the State, in order to
make it a progressive country, and if the said intention of the
Atharva Vedas is extracted to be made applicable, it cannot
be ruled out that the Notification herein, acquiring the land
adjoining the Line of Actual Control to provide a suitable
place to the Armed Forces, was well within the ambit of
spirit of ancient scripture also.
118. Thus, in view of the aforesaid reasonings and
rationale, this Court is of the view that :
1. To meet the object of the defence of the country in the
light of the spirit of the preamble, which intends to
constitute a country, as intended by its citizens, it will
be inclusive of maintaining an integrity and sovereignty
of the country, free from any foreign insurgencies over
the territory of India.
2. This Court is of the view, that owing to the ancient
scriptures and the public purpose as expressed in the
Notification issued for acquiring the land, adjoining to
the International borders to provide the defence with
sufficient infrastructure would be well within the ambit
of public purpose and the issuance of the Notification
would be within the exercise of powers of eminent
domain vested with the country.
3. This Court is of the view that for the reasons assigned,
when the preamble itself was framed on behalf of the
citizens of the country, it aimed to provide an integrated
India, the said objective cannot be diversified by
enforcing a right of a particular community at the cost
of the safety of the nation, because the use of the word
'citizens' in the preamble would be inclusive of any
sub-castes or reserve caste or tribes, as included in the
Constitution and their rights, which may be individual
in nature will not have precedence or supremacy over
the rights of the country.
4. This Court is of the view, that when it is the defence
requirement and that too, particularly in a remote areas,
where higher altitude warfare is one of the important
aspects due to inaccessibility of the area, which is not
motorable, the individual rights would not prevail.
5. No prejudice is caused to the petitioners, herein,
particularly when, in view of the ratio already dealt
with in the body of the judgement, their rights are being
protected to be suitably remunerated by payment of an
adequate compensation as a consequence of taking over
of the land to meet the public purpose, while exercising
the rights under the eminent domain, and in that
eventuality, it cannot be said that the petitioners would
be prejudiced or the act taken by State in is in violation
of Article 14 and 300A of the Constitution of India.
6. Even the rights, which are claimed by the petitioners
over the land, in question, in fact, owing to the records,
which has been brought by the petitioner before this
Court or as argued by the learned Senior Counsel, it
does not substantiate an establishment of an
indefeasible rights by any orders, which are to be
passed by the competent authority, because the claim of
vesting, as a consequence of the enforcement of the
Z.A. & L.R. Act, could be a vesting of land with the
State and not with the individual and vesting herein, as
per the decision of the Division Bench of Allahabad
High Court, would be confined to a right vested for
tilling of soil and not the ownership which vests with
the State.
7. The petitioners' contention that they have been in
possession since 1880, is not established by
documentary evidence, because their evidence which
has been placed on record shows that they are in
possession since 1967,though which was a fact denied
by the respondents, which remained un-rebutted that the
petitioners ever since 1990 had not taken any
agricultural activities over the land in question.
8. In order to contend that the petitioners were carrying an
agricultural activities over the land, it was the burden
which was to be discharged by the petitioners by
placing requisite documents on record of performing an
agricultural activities, which was not established owing
to the fact, that even their own revenue records, on
which, they have relied, do not establish their nature
possession or their tenureship over the land, as to under
which, category or classification of land, they would
fall to within the provisions of Section 129 of the Z.A.
& L.R. Act, to be read with Para-A, 124 of the Land
Record Manual.
9. Since the land is being acquired for the defence needs,
this Court is of the view, that irrespective of whatsoever
protection has been marginally granted by the Statute, it
cannot be compromised under any set of circumstances
to mitigate the defence need of the country, and
particularly, when as per the ratios dealt with above, the
petitioners right as envisaged by Article 300A are still
protected.
10. In view of the consistent decisions being taken by
the Ministry of Home Affairs and Ministry of Home
Affairs, Government of India, as would be apparent
from the various communications on record, and the
tactical report, which was placed on record to show the
strategic location of the land, which was more
importantly required to keep an eye on the two easily
accesses to the Indian territory across the Line of
Actual Control, i.e. "Lasar Gad" and "International
Pass", the land was of more of a military importance,
rather than an importance of an individual.
+
11. The tactical report and the surveys, which has
been made by the competent Revenue and Military
Authorities, it has been observed that the location of the
land since it is hardly 20 to 25 km. from International
Border, it is so located just below a mountain range, as
would be apparent from the map, that it would be
falling outside the firing range of the enemy country
and would be located near the already existing Army
Installations and Bunkers.
12. It has been further found that the land was so
located that heavy army equipment and long range
firing devices could be easily deployed from the land,
which was proposed to be acquired to meet the defence
need of the Paramilitary and Military Forces.
13. Hence, owing to the aforesaid reasons, this Court
is of the view that irrespective of the personal rights of
a person or a community, it can under no set of
circumstances, override the rights or need of the
defence of the country, hence the acquisition does not
suffer from any apparent error, which could leave open
for the petitioners to scrutinize the propriety of the
acquisition in exercise of its extra ordinary jurisdiction
under Article 226 of the Constitution of India.
119. In the light of the aforesaid reasons, this Court is
of the view that for all rationale and the logic assigned above,
the impugned Notification does not suffer from any legal and
apparent defect, hence, the Writ Petition lacks merit and the
same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
04.03.2022
Shiv
