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2023 DIGILAW 492 (PNJ)

Brar Hotel Private Limited v. Union of India

2023-02-01

M.S.RAMACHANDRA RAO, SUKHVINDER KAUR

body2023
JUDGMENT M.S. Ramachandra Rao, J. (Oral) This appeal is preferred challenging judgment dated 20.07.2017 passed by the learned Single Judge in CWP-21788-2013. 2. The appellant is a Private Limited Company. It's Managing Director and his family members purchased various plots of land under sale deeds dated 25.03.1989, 16.01.1990 and 22.03.1990 within the revenue limits of Village Jhande, Tehsil and District Ludhiana. They granted to the appellant lease hold rights on the basis of which the appellant constructed a marriage place/ hotel on the said land on the Ludhiana-Ferozepur Road. 3. The Army Authorities ordered the demolition of the said building under the provisions of Works of Defence Act, 1903 ( for short 'the Act') on the ground that a notification under Section 3 of the said Act had been issued on 31.01.1983 and the appellant had constructed the hotel thereafter which is contrary to law. 4. In August 2009 the structure erected by the appellant was demolished. 5. Prior thereto, when there was a threat of demolition, the appellant had filed CWP-11632-1999 before this Court and claimed compensation for structures demolished under Section 6 of the said Act. 6. The said Writ Petition was heard along with a batch of similar Writ petitions and was decided on 01.07.2019. It was held in the said decision that only construction existing on the date of notification would have the protection of not being demolished without prior compensation, and that construction raised after the notification was issued under the Act can be demolished without compensation. 7. After the structures erected by the appellant had been demolished, the appellant had approached respondent No.2 by filing a claim petition on 18.08.2009 specifically, making a claim for compensation/damage on account of the restrictions imposed under Section 7 of the Act invoking Section 12 of the said Act which provides for conduct of an inquiry and passing of an award and computation under Section 9 of the said Act. 8. We may point out that under Section 12 of the Act such award is to be passed by a Collector both for claims for compensation for damage caused or to be caused under Section 6 on account of demolition of any structure erected on the land which is covered by a notification under the Act and also for restrictions imposed under Section 7 of the Act. 9. Section 7 of the Act imposes the following restrictions:- "7. 9. Section 7 of the Act imposes the following restrictions:- "7. Restrictions. From and after the publication of the notice mentioned in Section 3, sub-section (2), such of the following restrictions as the Central Government may in its discretion declare therein shall attach with reference to such land, namely- (a) Within an outer boundary which, except so far as is otherwise provided in Section 39, sub-section (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,- (i) no variation shall be made in the ground-level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the General Officer Commanding the District, and on such conditions as he may prescribe; (ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated: Provided that, with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, road-ballast, manure and agricultural produce may be exempted from the prohibition: Provided also that any person having control of the land as owner, lessee or occupier shall be bound forthwith to remove such road-ballast, manure or agricultural produce, without compensation, on the requisition of the Commanding Officer, (iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant duly authorised in this behalf, in the case of land under the control of military authority, by the Commanding Officer and, in other cases, by the Collector with the concurrence of the Commanding Officer, and (iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this sub-section to be maintained, erected, added to or altered, repairs shall not, without the written approval of the General Officer Commanding the District, be made with materials different in kind from those employed in the original building, wall, bank or other construction. (b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of the work, the restrictions enumerated in clause (a) shall apply with following additional limitations, namely:- (i) no building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, and no such building, wall, bank or other construction shall be erected: Provided that, with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, huts, fences or other constructions of wood or other materials, easily destroyed or removed, may be maintained, erected, added to or altered: Provided, also, that any person having control of the land as owner, lessee or occupier shall be bound forthwith to destroy or remove such huts, fences or other constructions, without compensation, upon an order in writing signed by the General Officer Commanding the District; and (ii) live hedges, rows or clumps of trees or orchards shall not be maintained, planted, added to or altered otherwise than with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe. (c) Within a third boundary which may extend to a distance of five hundred yards from the crest of the outer parapet of the work, the restrictions enumerated in clauses (a) and (b) shall apply with the following additional limitation, namely: - no building or other construction on the surface, and no excavation, building or other construction below the surface, shall be maintained or erected: Provided that, with the written approval of the Commanding Officer and on such conditions as he may prescribe, a building or other construction on the surface may be maintained and open railings and dry brush-wood fences may be exempted from this prohibition." Xx xxx xxx 10. The claim of the appellant fell within Clause (b) of Section 7 of the Act. 11. The claim of the appellant fell within Clause (b) of Section 7 of the Act. 11. The Additional Deputy-cum-Collector, Ludhiana passed an order on 21.09.2012, which is impugned in the Writ Petition, treating the application of the appellant as an application under Section 6 of the Act for claim of compensation for demolition of the structures and held that the structures erected by the appellant fell within a radius of 1000 Yards and were entitled to be demolished without payment of compensation. He did not treat the claim of the appellant as a claim under Section 7 for payment of compensation for the restrictions in the use of the land imposed under Section 7 of the Act, though the appellant's claim was specifically under Section 7 of the Act. 12. Challenging the said order the appellant filed CWP-21788-2013 before this Court and sought quashing of the said order and also direction to respondent No.2 to determine the compensation in accordance with the direction of this Court in CWP-11632-1999 decided on 01.07.2009. 13. Learned Single Judge, however, dismissed the Writ petition on 20.07.2017. 14. The learned Single Judge also proceeded on the assumption that the claim of the applicant was for compensation in respect of the structures demolished by the Authority under the Act and he too did not treat the claim of the appellant as a claim under Section 7 for payment of compensation for the restrictions in the use of the land imposed under Section 7 of the Act. 15. Challenging the same this appeal is filed. 16. Counsel for the appellant contended the both respondent No.2 as well as the learned Single Judge fell in error in presuming that the claim of the applicant was in respect of compensation for demolition of the structure erected by the appellant under Section 6 of the Act; and both had over-looked the claim in the claim petition filed by the appellant before respondent No.2 was a claim for compensation caused on account of the restrictions imposed under Section 7 of the Act. 17. 17. He further contended that under Section 12 of the Act the appellant was entitled to claim compensation on account of restrictions imposed under Section 7 as well as compensation payable for demolition of structures under Section 6 of the Act (Clause-(b) of Section 12), and both respondent No.2 and learned Single Judge erred in proceeding on a mistaken assumption that the claim of the appellant is in respect of claim for compensation for demolition of the structure under Section 6 of the Act, when in fact it was not so, and it was a claim under Section 7 for compensation for restrictions imposed under Section 7 of the Act. 18. Learned counsel for the respondent No.1 contended that since the appellant had mentioned in the claim petition the order dated 01.07.2009 passed in CWP-8707-1999 and other connected Writ petitions including CWP- 11632-1999, there is nothing wrong in respondent No.2 taking the view he did in the impugned order. He also contended that since the appellant had purchased the land long after the notification issued on 31.01.1993 under the Act he is not entitled to claim any such compensation. 19. We have noted the contentions of both sides. 20. It is not disputed by the counsel for respondent No.1 that there is no prohibition on sale of land in respect of which a notification is issued under Section 3 of the Act. The subsequent purchasers however would have to abide by the restrictions imposed under Section 7 of the Act. 21. When there is no prohibition for alienation of the land in the Statute itself, the right which the vendor of the appellant's lessors had (to claim compensation under Section 7 of the Act on account of the restrictions imposed under the Act) would have to be construed as having been transferred to the appellant's lessors on the purchase of the land since all rights of the vendor automatically stand conveyed to the purchaser in the event of transfer of land in compliance with the provisions of the Transfer of Property Act, 1982 as is the case here. Therefore, the fact that the appellant's lessors had purchased the land after the notification is not relevant at all. 22. Therefore, the fact that the appellant's lessors had purchased the land after the notification is not relevant at all. 22. On a reading of the order of respondent No.2 as well as the order of the learned Single Judge, it is clear that both of them proceeded on an erroneous assumption that the claim of the appellant is for compensation under Section 6 of the Act for demolition of the structure erected by the appellant, though the very claim Petition filed by the appellant mentioned that the claim is under Section 7 in respect of restrictions imposed under the Act. 23. In this view of the matter, both the said orders cannot be sustained. 24. Accordingly, the present appeal is allowed; order of the learned Single Judge dated 20.07.2017 in CWP-21788-2013 and order dated 21.09.2012 passed by respondent No.2 are set aside; and the matter is remanded back to respondent No.2 to consider the Claim Petition filed by the applicant on 18.08.2009 ( which is a claim for compensation on account of restrictions imposed under Section 7 of the Act) and pass an appropriate award under Section 12 of the Act in accordance with law within 12 weeks from the date of receipt of copy of this order and communicate his award to the appellant. No costs.