The subject matter of these Writ Petitions is a notification issued under Section 3 of the Work of Defence Act, 1903 (for short, the Act) by the Ministry of Defence imposing restrictions on the use of land falling within the safety zone around the Naval Armament Depot (NAD) at Alwaye, Ernakulam which is a vital defence establishment holding large quantities of explosive stores and ammunitions for the Indian navy.
2. W.P(C) No.12412 of 2011 is filed by the NAD alleging that the civil authorities failed in imposing restrictions on the general use of land within a distance of 2000 yards from the outer periphery of their compound walls. The other writ petitions are filed by some local residents who own properties covered by the notification, alleging that on account of the restrictions imposed by the notification, their right to use their properties are curtailed and, therefore, further proceedings consequent to Section 3 notification has to be initiated for providing adequate compensation to them.
3. The NAD spreads over a total area of 536.02 acres. In case of any need by the Indian Navy or by any of the defence establishments, the depot supplies armaments. It is one of the main supply arteries for the defence establishments in Kerala and is having a Technical Area, Demolition Ground and a Rail Road access. They allege that in order to ensure safety of life of their personnel as well as the vast reserves of high explosives stored in the depot, a safety zone was promulgated by the Government of India, Ministry of Defence vide Notification DL-33001/92 dated 15.02.1992 in accordance with the Act. The notification imposes restrictions on the use of land which falls within the safety zone and prohibits construction or alteration of buildings of any kind in the survey numbers indicated in the notification as well as the sketch, and also imposes severe restrictions on the general use of land within a distance of 2000 yards from the outer periphery of the compound walls. Ignoring these restrictions, the local Panchayat was not taking any measures to stop the construction of buildings and allied activities in and around the safety zone. The Panchayat has recently undertaken tarring of a stretch in the safety zone, which is prohibited by the gazette notification of the Government of India. Multi storied buildings were being allowed to be constructed in utter violation of the notification. Despite several meeting with the civil authorities, the encroachments and other acts in violation of the gazette notification were being allowed; it is further alleged. Thus, they have approached this Court.
4. In the Writ Petitions filed by the property owners in the vicinity, they would contend that the said notification was not issued in accordance with the provisions of Section 3 of the Act and no sketch or plan of the land made mention of in the notification was prepared as contemplated in Section 3(2) of the Act. They would further contend that Section 9 of the Act mandates that before the expiration of 18 months from the publication of the declaration referred to in Section 3 or such other period not exceeding three years from the date of such publication as the Central Government may, by notification in the official gazette direct in this behalf, shall cause public notice to be given stating the effect of the said declaration and inviting claims to compensate for all interest in such land affected by anything done or ordered in pursuance of the declaration. It is their further contention that then only, they would be entitled to compensation for the injurious affection of their properties. According to them, in order to deprive them from the enjoyment of the land, it is mandatory for the District Collector to issue notice to the affected persons and conduct enquiry and determine the compensation payable to each party within the time stipulated under Section 9(1) of the Act.
5. Counter affidavits and statement have been filed by the respondent Panchayat, the State and the Central Government in W.P (C) Nos.12412 of 2011 and 5506 of 2013 refuting the allegations contained in the writ petitions.
6. Arguments have been heard.
7. At the time of hearing, the learned counsel appearing for the petitioners in W.P(C) Nos.5506 of 2013 and 26238 of 2013 would submit that the petitioners are not pressing their challenge against the notification issued under Section 3 of the Act. Section 3 of the Act reads as follows:
“Declaration and notice that restrictions will be imposed.- (1) Whenever it appears to the 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 situated 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.
8. What can be discerned from the aforesaid section is that the powers conferred on the Government under Section 3 is unfettered and the said declaration is a conclusive proof regarding the necessity to keep the land free from buildings and other obstructions. Therefore, there cannot be any quarrel against the proposition that a notification under Section 3 for reasons stated therein cannot be challenged by an affected party.
9. However, the material question that has to be considered is whether the Central Government after causing a notification issued under Section 3 of the Act is duty bound to proceed under Section 9 of the Act. The argument advanced by the learned Senior Counsel appearing for NAD and the Central Government is that it was not obligatory on the part of the District Collector to issue a notification under Section 9 of the Act. In order to appreciate this, it is necessary to have a look on Section 9 which reads as follows:
“Notice to persons interested.- (1) At any time before the expiration of.-
(a) the period of eighteen months from the publication of declaration referred to in section 3, or
(b) such other period not exceeding three years from the said publication as the Central Government 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 pursuant of such declaration may be made to him.”
10. A clear reading of Section 9 would reveal that Section 9 publication has to be effected within a period of 18 months from the publication of declaration referred to in Section 3.
11. As evident from sub section (2) of Section 9 that such notice shall contain the particulars of any damage ordered to be done or, in the case referred to in Section 6 or sub-section (3), then only the affected parties would be able to make their demand for compensation. It is also relevant to note that unlike in land acquisition proceedings there is no provision in the present Act by which the notification under Section 3 would lapse. Therefore, unless a subsequent notice as envisaged under Section 9 is issued, the affected parties will be loosing their right to get compensation. Even though the right to property is no longer a fundamental right, it continues as a legal right under Article 300A of the Constitution of India.
12. The right of the affected parties to get adequate compensation for curtailment of their right over the property for injurious affection has to be safeguarded. This can be done, either by compulsory acquisition of the property or by paying requisite compensation to the petitioners without imposing restrictions. Compulsory acquisition is out of question as per the scheme of the statute.
13. The restriction imposed in the notification is in public interest. Therefore, the civil authorities are bound to see that the restrictions are complied with in letter and spirit. Therefore, the writ petition filed by NAD seeking reliefs against the respondents to comply with the directions in Ext.P1 notification are only to be allowed. At the same time, the restrictions imposed by the notification would not cause inconvenience to other petitioners who are the property owners, as the enjoyment of their properties are curtailed on account of the said restrictions. Though it was argued by the learned Senior Counsel for the NAD that some of the party petitioners have acquired property only subsequent to Section 3 notification, that is not a ground for denying compensation especially because of the fact that the subsequent notice under Section 9 has not been issued so far.
14. On account of Section 3 notification which has resulted in the curtailment of rights of party petitioners to use the property owned by them, they are entitled to get adequate compensation for the said restriction. Therefore, it is mandatory on the part of the Central Government to issue a further notification under Section 9 of the Act.
In the result, the Writ Petitions are disposed of as under:
A) W.P(C) No.12412 of 2011 is allowed. Respondents in the said Writ Petition are directed to comply with the directions contained in Ext.P1 notification. The 4th respondent is directed to implement paragraph (3) of the minutes of the meeting of Ministry of Local Self Government bodies, Government of Kerala on 4.8.2009 where the Minister has instructed the concerned local bodies to ensure that:-
(a) No permission for constructions in safety zone is allowed.
(b) No application for house numbering to be admitted/accepted.
(c) Notice to be issued to existing building owners in safety zone to demolish.
B) The other writ petitions (W.P(C) Nos.22448/2012, 5506/2013, 26238/2013 & 2165/2014) filed by the local residents are disposed of directing respondents 1 to 4 to issue notice under Section 9 of the Act inviting claims for compensation for persons affected by Ext.P3 notification, including the petitioners and complete the procedures as prescribed within a period of one year in accordance with the provisions contained in the Act. The notification as above shall be issued within three months from today.
sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj true copy P.S.TO JUDGE