"No Public Right Is Superior To Defence Of The Country": Uttarakhand HC Dismisses Challenge To Land Acquisition For ITBP Near LAC

While affirming the defence'd needs over and above every other individual and public purpose, a Single Judge Bench of Justice Sharad Kumar Sharma held,

"I am of the view that the defence purposes of the country acquire the driver's 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 personnel. That is what has been even intended by the preamble of the Constitution of India."

Brief Facts:

The petitioners herein are the residents of Village "Milam", Tehsil Munsiyari, District Pithoragarh. The village 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. In the said village, the land in dispute is situated, which was proposed to be acquired for defence purposes. It is approximately 20 to 25 KMs away from the bordering frontier, i.e. Line of Actual Control, between India and China, and strategically, of a grave military importance.

The petitioners claimed to belong to a 'scheduled tribe' which 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. They contended that the lands in question, which are situated in the aforesaid village, belong to them. Accordingly, they have challenged the proposed acquisition.

Contentions:

The petitioners submitted that since they belong to a Scheduled Tribe 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 Act, their land ought not to have been acquired, even for the purposes of meeting out the requirement of the defence personnel. They claimed their self-acclaimed immunity in the light of the provisions contained under Section 40 to be read with Section 41 of the Act.

Out of multiple other arguments, they also challenged the aforesaid Notification on the ground that it happens to be in violation of Section 21 of the Act which requires a 30 days' notice to be provided after the publication of notification [under Section 11(1)], for taking possession of the land. It is argued to be mandatory, even if it was to be acquired for the public purposes. That was not complied with in this case. Further, they impugned the notification for it being against the mandate of Section 15 of the Act, which provides for hearing of objections against the proposal of acquisition.

Observations of the Court:

Section 15 provides that 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 the following:

(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.

While disapproving the arguments as regard violation of Section 15, the Court observed,

"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…"

The Court further held 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, the Court laid down that it will have no application in the circumstances of the instant case, due to the implications of Section 2(1)(a) read with Section 9 of the Act, which had exempted the applicability of Section 40.

The Court relied on Laxman Lal v. State of Rajasthan, (2013) 3 SCC 764, 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 in the judgment. It held 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.

It ruled that the said provision 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.

Furthermore, the Court rejected the claim of petitioners that their special rights as members of 'scheduled tribe' are violated. It observed that though they have claimed their rights as members of a "Scheduled Tribe" and residents of a "scheduled area", which has been defined in the Fifth Schedule of the Constitution, as framed under Article 244, but there is no material as such on record in order to enable them to show that ever the village Milam was declared to be a scheduled area, as per Part-C of the Fifth Schedule of the Constitution.

Again, it went on to rely on a catena of judgements of the Apex Court, including the recent one in Hari Krishna Mandir Trust v. State of Maharashtra & Ors. which reiterated 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 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 Court ruled that the right to property though not fundamental right any more, but still, it is a constitutional right, which is protected under Article 300A of the Constitution of India. The executive or administrative decision cannot be arbitrarily exercised dehors the spirit of the Article, depriving a person of his private right under the concept of public requirement. However, the same could be done in the exercise of theory, when the second parameter of awarding reasonable compensation as per the law is met out.

Consequently, it was concluded that since the land was acquired for the defence needs, 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 the rights of petitioners as envisaged by Article 300A are still protected by way of award of reasonable compensation. Accordingly, the petition was dismissed.

Case Title: Heera Singh Pangtey and Ors. v. State of Uttarakhand and Ors.

Case No.: Writ Petition (M/S) No. 2364 of 2015

Date of Judgment: 04 March 2022

Coram: Justice Sharad Kumar Sharma

Citation: 2022 LiveLaw (Utt) 9