Document Fragment View

Matching Fragments

It has been further stressed by the petitioners that in any event the provisions of Sections 628 and 629 of the Act do not provide to a civilian or an individual owner of a property including an artificial person any compensation should the army authorities refuse to grant permission or disallow optimum utilization of the property and thus they are contrary to the provisions of the Cantonment Act, 2006 as well as the Works of Defence Act, 1903.

It is the further case of the petitioners that the two impugned provisions lead to the deprivation of their fundamental right to carry on business and, therefore, are in violation of Articles 14, 19(1)(g) and Article 300A of the Constitution of India. Unless there is a declaration under the Works of Defence Act, 1903 or under the provisions of the Cantonment Act, 2006 it is to be presumed that a structure does not pose any threat to defence installations. The petitioners have relied on a circular issued by the Ministry of Defence, Government of India under the Works of Defence Act, 1903 that beyond 500 meters from any defence installation no structure poses any security hazard. But in spite of it without defining or identifying the lands which are subject to provisions of Sections 628 and 629 of the Act and in violation of the Cantonment Act, 2006 and the Works of Defence Act, 1903 the army authority has sought to restrict the enjoyment of the property by the petitioner no. 1.

The petitioners have further argued that the impugned Sections of the Act have also the potential of depriving a citizen of his right to enjoy the property. A person may be deprived of his right to property under Article 300A only by operation of law. The challenge of the petitioners is that the impugned sections provide for such deprivation by administrative discretion and the respondents enjoy unbridled power. Mr. Mukherjee has laid stress on the proviso to Section 629(2) of the Act which declares that no person shall be entitled to any compensation on account of demolition or alteration which may be directed by the Municipal Commissioner if the construction had been carried on or completed without obtaining the sanction of the Central Government.

It is also very difficult to accept the submission of the petitioners that the impugned Sections of the Act violate the right to property under Article 300A of the Constitution of India. Right to use any property is always subject to some restrictions. Absolute right to use a property without any corresponding restriction is inconceivable. Article 300A bars deprivation of property save by authority of law. In the case of Jilubhai Nanbhai Khachar etc. etc. -Vs.- State of Gujrat and Another etc. etc., reported in AIR 1995 SC 142, it has been held that deprivation can only be made by an Act of Parliament or State Legislature, rule or statutory order having the force of law. Thus there is no lack of authority in the present case.

The question is whether legislature in its wisdom and regard being had to the other overwhelmingly important considerations including the security of the state can put any restriction on the use and enjoyment of the property of a particular area and if so whether such restriction can be, without anything more, be described as violative of Article 300A of the Constitution of India.

In the case of K. T. Plantation Private Limited and Anr. -Vs.- State of Karnataka, reported in (2011) 9 SCC 1 a three-judge bench of the Supreme Court held that deprivation of property under Article 300A of the Constitution of India must be in accordance with law which must be just, fair and reasonable. The Supreme Court had held that deprivation of property by statute must take place for public purpose or public interest. The purpose must be primarily public and not primarily a private interest. The concept of public purpose has been given fairly expansive meaning which is to be justified upon the purpose and object of the statute.