Heera Singh Pangtey and Ors. v. State of Uttarakhand and Ors. 04 mar 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 

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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, 

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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 

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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 

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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 

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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 

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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 1^st 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 :-

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“jkT;iky Hk wfe vtZu] iquok Zl vk Sj iquO;ZoLFkkiu e sa mfpr  izfrdj vk Sj ikjnf”k Zrk vf/kdkj vf/kfu;e] 2013 ¼vf/kfu;e la[;k  30 lu~ 2013½ dh /kkjk 11 dh mi/kkjk ¼1½ }kjk iznRr “kfDr;k sa dk  iz;k sx djd s loZ lk/kkj.k dh lwpuk d s fy;s vf/klwfpr djr s g S a fd  mudk lek/kku gk s x;k g S fd fuEufyf[kr vuqlwph e sa mfYyf[kr Hk wfe  dh yk sd iz;k stu vFkk Zr ftyk fiFkk Sjkx<+ d s x zke feye] ijxuk  tk Sgkj] rglhy equL;kjh e sa 14 oh a okfguh Hkk0fr0lh0iq0 cy] dh  vfx ze pk Sdh eq[;ky; dh LFkkiuk g srq x zke feye dh 2-4980 g S] Hkwfe  dh vko”;drk g SA  

Pkwafd /kkjk 40 d s v/khu vkR;kf;drk micU/kk sa dk voyEc y sr s  g q, mDr vf/kfu;e] 2013 dh /kkjk 9 d s vuqlkj leqfpr ljdkj e sa  lkekftd lek?kkr fu/kk Zj.k v/;;u djkus l s N wV iznku djus dh  “kfDr nh x;h g SA vr,o vc jkT;iky dh ;g jk; g S fd ;g ekeyk  vR;ko”;drk g S] blfy, mDr vf/kfu;e dh /kkjk 11 dh mi/kkjk ¼1½  d s v/khu funsZ”k n sr s g S a] fd ;|fi /kkjk 40 d s v/khu dk sbZ  vfHkfu.k Z;@vkns”k ugh a fn;k x;k g S rFkkfi jkT;iky mDr yk sd  iz;k stu d s fy, /kkjk 40 dh mi/kkjk ¼1½ e sa fufnZ’V ?kk s’k.kk d s lkFk  fuEufyf[kr vuqlwph e s a mfYyf[kr Hk wfe dh mDr vf/kfu;e dh /kkjk  11 dh mi/kkjk ¼1½ d s vuqlkj foKfIr vf/klwfpr dh tkrh g S%&” 

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 1^st 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 14^th 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 

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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 

……..

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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 1^st 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 1^st August,  2015, on the principle ground, that it happens to be in 

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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 

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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 

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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 

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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 

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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.”

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20. The petitioners have submitted, that the  Notification of 1^st 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 

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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, 

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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 27^th 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 

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“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 

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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 14^th 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 

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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.”

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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 

23 

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 

24 

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 

25 

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, 

26 

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 

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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 

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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 1^st 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 19^th 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 

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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:

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“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 

31 

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 

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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 

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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 

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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 

35 

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 

36 

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 

37 

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 5^th 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 5^th 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 

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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 

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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, 

40 

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 

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[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 

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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.

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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 

44 

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 

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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 

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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 

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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 24^th 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 16^th July, 2001. Vesting the right  by virtue of which the petitioners claim their right over the 

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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 16^th 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 28^th 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 

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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 

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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 

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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 11^th 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 

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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 

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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  11^th 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 14^th 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 18^th 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 30^th September, 2013, called for a report  and the feasibility report, which was submitted by Letter No.  24 dated 5^th February, 2014, wherein, as per the report  submitted by SDM after actual spot inspection on 16^th December, 2013, following observations was made :-

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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 28^th April, 2014,  which was forwarded by the Board of Revenue vide  Letter No. 31 dated 6^th 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 3^rd 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 

55 

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 

56 

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 22^nd 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 14^th 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:-

57

58 

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 3^rd 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 

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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 

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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 

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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 11^th 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 d s fudV g S tgkW ij cy  dh leqfpr rSukrh jk”Vª fgr e sa gj le; visf{kr g S] ftl dkj.k bl  Hk wfe dk “kh/k zkfr”kh/k z gLrkUrj.k dj ogkW ij jgus okys tokuk s a d s fy,  cSjsd vkfn cqfu;knh lqfo/kk;sa miyC/k djk; s tkus g srq “kh/k z fuek Z.k  dk;Z izkjEHk fd;k tkuk g SA izLrkfor Hk wfe dk s foHkkx }kjk lacfU/kr  Hk w&Lokfe;k sa ls vkilh le>k Srs l s dz; fd;k tkuk lEHko ugh a g SA” 

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 

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Magistrate, Pithoragarh, vide its Letter No.  49/Hk w0v0/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 25^th 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 

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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 e sa lsukuh] 14 oh a okfguh] Hkk0fr0lh0iq0 cy  d s i= la[;k&vfHk0@2011&567&69 fnuk ad 27-012014 ¼Nk;kizfr  layXud&2½ d s }kjk voxr djk;k x;k g S fd lhek pk Sdh dh  LFkkiuk g srq 3-410 g s0 dk ekud fu/kk Zfjr g SA orZeku le; esa  Hkk0fr0lh0iq0 ds dCt s e sa d soy ,l0ih0,Q0 d s uke ntZ 0-903 g s0  Hk wfe g SA Hkwfe dh deh d s dkj.k lhek pk Sdh e sa dk;Zjr tokuk sa d s  fuokl vkfn d s fy, dkQh dfBukbZ dk lkeuk djuk iM jgk g S  ftldk tokuk sa d s euk scy ij foijhr vlj iM jgk g SA rFkk iwoZ e sa  pk Sdh dh LFkkiuk gsrq izf’kr x zke feye dh 2-4980 g S0 Hk wfe dks  Hkk0fr0lh0iq0 d s uke vf/kx zg.k djus dk vuqjk s/k fd;k x;k g SA 

bl izdkj lhekUr {k s= e sa Hkk0fr0lh0iq0 dh fee pk Sdh dh  LFkkiuk g srq lkoZtfud Hk wfe] jkT; ljdkj d s LokfeRo dh Hk wfe]  flfoy lk s;e ,oa foHkkx dh Hk wfe miyC/k u gk s iku s d s dkj.k jk”Vªh;  lqj{kk d s fgr dk s n`f”Vxr j[kr s g q, Hk wfe/kjk as dh uki Hk wfe dk s gh  vf/kx zg.k fd;k tkuk vko”;d g SA  

vr% vuqjk s/k g S fd jk”Vªh; lqj{kk d s gr dk s n`f”Vxr j[krs g q,  iwoZ e sa vf/kx zg.k g srq iz sf’kr x zke feye dh 2-4980 g S0 Hkwfe/kjk sa dh uki  Hk wfe dk s Hkw&vtZu vf/kfu;e d s vUrx Zr Hkk0fr0lh0iq0 d s uke  vf/kx zg.k d s izLrko e sa ifj’kn Lrj ij fopkj dju s mijkUr /kkjk&4  ¼1½@17 ds vUrx Zr “kkldh; foKfIr fux Zr djus g srq “kklu ds  iz”kkldh; foHkkx dk s izLrko iz sf’kr dju s dk d‘V dj saA” 

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 

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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.

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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 

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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. 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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:

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“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’.”