Union of India and Others vs State of Himachal Pradesh and Others

Tarlok Singh Chauhan, J.

This is an unfortunate case, where Union of India has been compelled to approach this court for enforcing the Gazette notification dated 22.11.2005, which was issued in exercise of powers conferred by section 3 of the Works of Defence Act, 1903 (7 of 1903) for short, the Act, whereby it sought to impose certain restrictions specified in section 7 of the said Act. This notification reads thus:--

"GOVERNMENT OF INDIA (TO BE PUBLISHED IN PART II SECTION 4 FOR THE GAZETTE OF INDIA) Government of India Ministry of Defence

22 Nov 2005

New Delhi, the

Notification

125

SRO. In exercise of the powers conferred by Section 3 of the Works of Defence Act, 1903 (7 of 1903), the Central Government hereby declares that it is necessary to impose the restrictions specified in section 7 of said Act upon the use and enjoyment of the land described in the Schedule below, being land lying in the vicinity of Ammunition Points, 36 Sector Ordnance Maintenance Platoon (OMP), District Kinnaur in the State of Himachal Pradesh, in order that the said land may be kept free from building and other obstructions, from the date of publication of this notification.

A sketch plan of the said land may be inspected in the office of Deputy Commissioner, Kinnaur in the State of Himachal Pradesh.

Schedule

All the land comprised in the area lying within the distance of one thousand two hundred yards from the periphery of the works of defence, namely, Ammunition Point, 36 Sector Ordnance Maintenance Platoon (OMP), Distt. Kinnaur in the State of Himachal Pradesh.

Ministry of Defence No. B/50542/AP/36 Sect/LW(West)179

Sd/- xxx (VB Dubey) Under Secretary to the Government of India.

Publish

Sd/- xxx (VB Dubey) Under Secretary to the Government of India."

Briefly stated the facts of the case are that 36 Sector Ordinance Maintenance Platoon is a static Unit of Army located in Kinnaur District i.e. Shongtong/Poari. The unit is responsible for provision, receipt, stocking, maintenance and issuance of all types of ordinance store to the unit of Headquarter Western Command deployed in forward area on Indo-Tibetan Border. It is also responsible for War Wastage Reserve (WWR) for all the Units of Headquarter Western Command including dual task units and Central Police Organizations.

Presently the platoon is located along the national highway 05 (erstwhile NH-22) between milestone 362 and 366 and is divided into three major different locations, i.e. Administrative Area, Depot and Ammunition Point. The complete unit is spread out over a distance of three kilometers i.e. from Shongtong to Poari through extremely rugged and mountainous terrain. The unit has been set up at the aforesaid place keeping in view its strategic importance. The International Border i.e. Indo-Tibetan Border is hardly at a distance of 40 kilometers (crow''s flight) and about 60 to 90 kilometers by road. The unit is also of further strategic importance in view of detailed averments made in para-4 of the petition (which cannot be reproduced for obvious reason). It was after taking into consideration the sensitivity and importance of the matter that government issued the aforesaid notification.

Now the grievance of the petitioners is that despite issuance of aforesaid notification, the State has not been successful in preventing the construction activity in the identified area not only by civilians but even by the State government including the H.P. Power Corporation Ltd., which is executing a Hydro Project in the area and therefore has prayed for the following relief(s)-

"(i) That the respondent State as well as other respondents may be directed to comply with the mandate of Gazette notification dated 22.11.2005 issued by the Govt. of India, Ministry of Defence, New Delhi, immediately. They may also be directed to not allow any construction activity in the notified area by civilians and State Govt. shall proof as well as HP Power Corporation Limited without NOC from Army.

(ii) That the construction work of Shongtong- Karcham Hydro Electric Power Project (450 MW) being carried out by Himachal Pradesh Power Corporation Limited (HPPCL) may be stopped forthwith in the public interest.

(iii) That District Administration at Kinnaur may also be directed to remove illegal construction by local people/govt. organization in the area who have raised construction in violation of Gazette Notification.

(iv) That respondent State of Himachal Pradesh may kindly be directed to take immediate steps for transfer of 1000 acre of land in DPF 226, 227 and 228 near village Jangi/Akpa in Morang Tehsil of Kinnaur District, in terms of joint inspection committee to facilitate the relocation of Ammunition Point, 36 Sector OMP.

(v) That appropriate directions may be issued to present respondents as well as others not to resort to blasting for construction of road within notified area around Ammunition Point, 36 Sector OMP without NOC from Army.

(vi) That the entire record pertaining to the case may kindly be summoned for the kind perusal of this Hon''ble Court.

(vii) District Administration at Kinnaur be asked to monitor clearance zone 1200 yards around Ammunition Point, 36 Sector OMP and 500 yards from Poari military garrison for any illegal construction and not allow same to come up. Also, the clearance zone (1200 yds. From Ammunition point, 36 Sector OMP and 500 yards from Poari military garrison) marked with boundary pillars and sign Boards for proper identification."

The respondents No. 1 to 4 in their reply have submitted that they were taking all necessary steps to comply with the Gazette notification and in para-16 of the reply it was averred as follows:--

"That the contents of para No. 16 of the Civil Writ petition are admitted being matter of record. In reply to this para it is submitted that the army authorities have agreed to shift the ammunition dump in pooh Sub-Division and have selected the land near Jangi village in Moorang Tehsil. The proposal of shifting the ammunition dump is the result of directions passed to the District Administration by the Government as a result of decision reached between Chief Secretary and GOC in C Western Command. However, the villagers of Jangi have outrightly rejected the establishment of Ammunition dump in 1000 acres of forest land situated in compartment No. 226, 227 and 228 in Jangi area. A.D.M. Pooh and OC. OMP, 36 Sector held meeting with the villagers of Jangi, but they have out rightly rejected the proposal on the grounds that they have forest rights in the area proposed and the presence of Army will hinder their customary rights and they have taken it as violation of Forest Rights Act, 2006. The negotiations have been resumed and ADM Pooh has been made a Nodal Officer for locating suitable land for shifting of Ammunition dump in Pooh Sub-Division and joint inspection is in progress. As informed by the A.D.M. Pooh, now the Army authorities of 36 Sector have scaled down the requirement of land to 600 acres and some sites have been located which are yet to be finalized."

Since the dispute was primarily between the Central Government and the State Government, this court made repeated endeavours to have the matter settled amicably, but to no avail.

We have heard the learned counsel for the parties and have gone through the records of the case.

At the outset, it may be observed that as against the proposed requirement of 400 acres i.e. 2000 bighas of land, the petitioners as per the revised estimate, confined their claim to 100 acres. The only impediment in enforcing the notification appears to be the customary rights being claimed by the villagers of the adjoining villages Akpa and Jhangi. But then once the notification under section 3 of the Act has been issued, the only remedy to the aggrieved person is to take recourse to the remedies as provided under the Act. But in no event can any person or authority be permitted to take law into its own hands.

Sections 3, 7, 9 and 12 of The Works of Defence Act, 1903 (Act 7 of 1903) (for short, the Act) read as under:--

"3. Declaration and notice that restrictions will be imposed.

(1) Whenever it appears to the 1 Central Government] that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders.

(2) The said- declaration shall be published in the Official Gazette and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality.

(3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.

Restrictions. From and after the publication of the notice mentioned in section 3, sub-section (2), such of the following restrictions as the [Central Government] may in its discretion declare therein shall attach with reference to such land, namely:--

(a) Within an outer boundary which, except so far as is otherwise provided in section 39, sub-section (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,-

(i) no variation shall be made in the ground- level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the 1 General Officer Commanding the District], and on such conditions as he may prescribe;

(ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated:

Provided that, with the written approval of the 2 General Officer Commanding the District] and on such conditions as he may prescribe, road- ballast, manure and agricultural produce may be exempted from the prohibition:

Provided also that any person having control of the land as owner, lessee or occupier shall be bound forthwith to remove such road- ballast, manure or agricultural produce, without compensation, on the requisition of the Commanding Officer;

(iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant duly authorised in this behalf, in the case of land under the control of military authority, by the Commanding Officer and, in other cases, by the Collector with the concurrence of the Commanding Officer; and

(iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this sub-section to be maintained, erected, added to or altered, repairs shall not, without the written approval of the 1 General Officer Commanding the District], be made with materials different in kind from those employed in the original building, wall, bank or other construction.

(b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of the work, the restrictions enumerated in clause (a) shall apply with the following additional limitations, namely:--

(i) no building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, and no such building, wall, bank or other construction shall be erected:]

Provided that, with the written approval of the 1 General Officer Commanding the District] and on such conditions as he may prescribe, huts, fences or other constructions of wood or other materials, easily destroyed or removed, may be maintained, erected, added to or altered:

Provided, also, that any person having control of the land as owner, lessee or occupier shall be bound forthwith to destroy or remove such huts, fences or other constructions, without compensation, upon an order in writing signed by the 2 General Officer Commanding the District]; and

(ii) live hedges, rows or clumps of trees or orchards shall not be maintained, planted, added to or altered otherwise than with the written approval of the 1 General Officer Commanding the District] and on such conditions as he may prescribe.

(c) Within a third boundary which may extend to a distance of five hundred yards from the crest of the outer parapet of the work, the restrictions enumerated in clauses (a) and (b) shall apply with the following additional limitation, namely:

no building or other construction on the surface, and no excavation, building or other construction below the surface, shall be maintained or erected:

Provided that, with the written approval of the Commanding Officer and on such conditions as he may, prescribe, 3 a building or other construction on the surface may be maintained and] open railings and dry brush- wood fences may be exempted from this prohibition.

Notice to persons interested. (1) At any time before the expiration of-

(a) the period of eighteen months from the publication of the declaration referred to in section 3, or

(b) such other period not exceeding three years from the said publication as the 1 Central Government] 2 may, by notification in the Official Gazette, direct in this behalf, the Collector shall cause public notice to be given at convenient places on or near the land, stating the effect of the said declaration and that claims to compensation for all interests in such land affected by anything done or ordered in pursuance of such declaration may be made to him:

Provided that, where anything has been done in exercise of the powers conferred, in case of emergency, by section 6, sub-section (3), the notice prescribed by this section shall be given as soon as may be thereafter.

(2) Such notice shall state the particulars of any damage, ordered to be done or, in the case referred to in section 6, sub-section (3), done in exercise of any of the powers conferred by the said section, and the particulars of any restrictions attaching to the land under section 7, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time an d place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for damage to such interests and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.

(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue- district in which the land is situate.

(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business.

Inquiry and award by Collector. On the day fixed under section 9 or on any other day to which the inquiry has been adjourned, the Collector shall proceed to inquire into the objections (if any) which any person interested has stated pursuant to a notice given under the said section to the measurements made under section 8, and into the decrease in the value of the land, and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of-

(a) the true area of the land and the nature of the obstructions from which the land is to be kept free;

(b) the compensation which in his opinion should be allowed for any damage caused or to be caused under section 6 and for any restrictions imposed under section 7; and

(c) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether they have respectively appeared before him or not."

It is clear from the provisions of section 3 read with section 7 of the Act that on requisite satisfaction having been arrived at as to the requirement of necessity to impose restriction on use and enjoyment of land in the vicinity of any work of defence or any site or other restrictions as may be declared under section 7 of the Act, notification can be issued, which is conclusive proof of necessity to keep the land free from building and obstructions and to being into force the restrictions stipulated under section 7 of the Act. The scheme of the said provision is to bring into force the restriction forthwith.

The enforcement of such restriction or scheme is not postponed or made dependant on the making of any award or payment of compensation. The only right which may survive on account of non-compliance even of provisions of sections 9 or 12 of the Act is to make a claim for compensation. At best in case of gross delay, the aggrieved party can approach a court and the court may in the given facts and circumstances mould the relief to do justice, but then no person or authority can treat the restriction placed to be non est.

As per above noted provisions, there can be no construction or obstruction within the restricted area. The construction raised in violation of the notification can be demolished without compensation, but the construction existing on the date of notification cannot be demolished without prior compensation. However, absence of taking steps or making award do not effect the validity and enforcement of notification under section 3 read with section 7(b) of the Act and the affected party, at best, is entitled to a direction of taking steps for making of an award and for compensation for the delay.

The intention and purpose of the Act has been succinctly summed up by a learned Division Bench of Punjab and Haryana High Court, while adjudicating CWP No. 13217 of 2009 titled Virender Kumar and others v. State of Haryana and others, decided on 15.12.2010, wherein it was held as follows:--

"The intention and purpose of the Defence Act is apparent and laudable. Since works of defence are vital installations which directly relate to the safety, security, sovereignty and integrity of the country, it cannot be compromised with in any manner and in no circumstances, can be diluted or overlooked. The reason why this Act was enacted is not far to find. A mere look at the objectives specified in the Preamble of the Constitution of India, which contain the basic structure of the Constitution, reflect the purpose for which India was constituted. Sovereignty, unity and integrity of the nation specifically form part of the Preamble. By reducing it to mere words without any force or effect would be destroying the spirit of the Constitution, which cannot be permitted in any situation. Casual and unconcerned approach in this regard is neither expected nor acceptable. It is the fundamental duty of each citizen of this country to protect and guard the sovereignty, unity and integrity of our nation with no element of impurity or adulteration. The Court cannot turn a blind eye to the blatant inaction on the part of the Authorities who have permitted a seepage to develop into a trickle, which is now threatening to take the shape of a full scale stream breaching and eroding not only the safety and security but the foundation of the Constitution itself by endangering the sovereignty, unity and integrity of our country. Internal aggression and attack is more dangerous and harmful to the nation and its interests which cannot be permitted. The rights and interests of the citizens are not above the national interests and if there is a conflict between the two, the national interest must prevail. It is true that a balance has to be struck between the haves and have not which is present between the citizens and a plea can be raised that the poor citizens who have just one roof over their head would be deprived of their shelter by invoking the stringent provisions as provided for in the Defence Act. But when the existence of the nation is at stake, no other consideration can be given weightage over and above it. The Defence Act strikes a balance between the interest of the citizens and the nation as they are duly compensated under the Act but the vital defence installations which are of extreme necessity and importance and are the need of the hour cannot be put to jeopardy while deciding such conflicting interests. The Defence Act essentially provides for the legal basis to protect the works of defence which are in National interest and, therefore, the provisions thereof have to be meticulously and sincerely complied with by the Authorities who have been assigned the duty to implement the same.

We are, thus, of the opinion that the interest of the nation exceeds all personal interests and personal interests should make way to the national interest. The Ammunition Depot is a strategic defence installation and in the very nature of things, the matter of its location is a delicate and sensitive issue involving the defence and security of the country which cannot be compromised with under any circumstances."

Bearing in mind the objects of the Act, the statutory and the Executive Authorities are mandated under the law to implement, oversee and maintain the statutory provisions. But unfortunately in the present case, despite a lapse of nearly one decade they have failed to give effect to the notification.

It is more than settled that individual and personal interest must yield to and cannot override national interest. The provisions of the Act must have an overriding effect over the local laws, executive policies and private interest, therefore, the private interest can only be held to be subserving national interest embedded in the Act.

In view of the aforesaid discussion we find merit in this petition and same is allowed. Accordingly, we proceed to pass the following directions:--

"(i) The Collector as notified under the Act is directed to issue notice to the persons interested as per the provisions of Section 9 of the Act.

(ii) The Collector is directed to pass an award as per the requirement of Section 13 of the Act at the earliest and in no event beyond 31st December 2015.

(iii) The respondent-State is directed to facilitate the petitioners in taking possession of the area as notified under section 3 of the Act to the extent of 100 acres only (as finds mentioned in the status report filed by respondent No. 3 in compliance to the directions passed by this court on 4.3.2015 and 31.3.2015).

(iv) The competent authority under the Act is directed to remove and demolish all the illegal construction that has been commenced/raised after the issuance of notification under section 3 of the Act within a period of three months and report compliance to this court within three months.

(v) The respondent No. 5 is restrained from carrying out any construction activity of Shongtong-Karcham Hydro Electric Power Project beyond 1200 yards of the periphery of ammunition point at Poari and is further restrained from digging and blasting work beyond the aforesaid area.

(vi) The construction, if any, raised before issuance of notification under section 3 shall be determined by the Collector in the aforesaid terms.

(vii) Henceforth no construction (except at the behest of the petitioners) shall be carried out by any authority or individual in the notified area.

(viii) All the individuals and authorities will ensure that the possession of the land is handed over to the petitioners without any obstruction or hindrance.

(ix) Non-compliance will be treated as contempt."

The petition is disposed of in aforesaid terms, leaving the parties to bear their own costs.