In order to keep the areas in the vicinity of defence establishments free from any building, plantation, or other constructions, the British Government enacted the Works of Defence Act 1903. This law has continued to remain in force to date. The construction of unauthorised buildings in the vicinity of the works of defence has the potential to endanger the defence establishments and, thus, threaten the nation’s security.
However, considering the various socio-economic developments that have taken place since this law was enacted, the Government of India is considering bringing an amendment to liberalise the stringent provisions of the Act.
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The Works of Defence Act
The Works of Defence Act 1903 was enacted more than a century ago and laid down a scheme for imposing restrictions on the land near a defence establishment.
Object of the Act
The main objective of the Act is to ensure that no construction takes place in the vicinity of the defence area. Additionally, the Act outlines the process for determining compensation in cases where restrictions are placed on the use and enjoyment of land near defence installations.
Imposition of Restrictions
Section 3 of the Act states that if the Central Government deems it necessary and beneficial to impose restrictions on the use of land near defence installations, they can issue a declaration to that effect.
After the declaration is issued, government officials have the authority to access the specified land and conduct a survey to establish the boundaries and extent of the imposed restrictions.
Additionally, they may demolish any buildings already constructed on the designated land.
The Act outlines the following potential restrictions on the use and enjoyment of the land:
- No wall, building, or other construction can be made on the land
- The accumulation and storage of any wood, stone, or gravel might be prohibited
- Survey of the l
- and cannot be done by any person other than an authorised public servant
- Trees or orchards may not be planted or maintained on the land
After a declaration is made under Section 3, the Collector must issue a public notice specifying the compensation due to the individuals with a stake in the notified land. This notice must be issued within a maximum of three years from the declaration date. It should also outline the proposed restrictions that will be imposed on the notified land.
Those interested in the notified land must present themselves before the Collector within 15 days from the publication of the notice, either in person or through a representative. They are allowed to raise any objections related to the declaration. The Collector will then assess these objections and issue a final order regarding the compensation to be paid to the concerned individuals and the type of restrictions that will be applied to the land.
Sunbeam Enterprises v. Municipal Corporation of Greater Mumbai
In the case of Sunbeam Enterprises v. Municipal Corporation of Greater Mumbai (2019), the Ministry of Defence issued circulars outlining potential restrictions on the use of the petitioner’s land. The petitioner contested these restrictions, arguing that the circulars did not constitute a formal declaration as defined in Section 3 of the Works of Defence Act, 1903. Therefore, they contended that the mandatory procedure outlined in Section 3 needed to have been adhered to.
The petitioners asserted that both the issuance of the declaration and its publication in the official gazette were essential steps, and failure to follow these procedures rendered the imposition of restrictions invalid.
However, the Court determined that even if the formal declaration under Section 3 of the 2003 Act had not been made, the defence authorities still possessed the authority to withhold a No Objection Certificate (NOC) for the relevant project based on the Monopolistic and Restrictive Trade Practices Act of 1969 and the Development Control Regulations.
Consequently, the Court upheld the restrictions placed on the project and dismissed the arguments raised by the petitioners.
Reference to Court
If someone is dissatisfied with the final order issued by the Collector, they have the right to request the Collector to refer the award to the Court for a final decision. This application must also specify the grounds for objection.
Upon receiving the application, the Collector will furnish the Court with the following details:
- The rationale behind imposing restrictions on the use and enjoyment of the land.
- The names of individuals with an interest in the affected land.
- The compensation owed to these interested parties.
Subsequently, the Court will issue notices to the applicant and any other relevant parties interested in the land. After hearing all concerned parties, the Court will make determinations regarding the objections raised by the applicant. The Court will also make decisions regarding the restrictions to be placed on the land and the amount of compensation to be awarded to the interested parties.
Section 25 of the Act stipulates that the Court cannot award compensation lower than the amount determined by the Collector, nor can it exceed the amount claimed by the applicant.
Reference by defence Authorities
In the Station Head Quarter, Sukhlalpur, and Another v. Kewal Kumar Jaggi case, the Supreme Court considered whether the defence authorities were eligible to apply to Section 18 of the Act. This section states that if any individual with a stake in the land is dissatisfied with the Collector’s decision, they may request a referral of the matter to the Court. However, in this particular case, the defence authorities filed the application under Section 18 rather than the individual with a vested interest in the land.
The Madhya Pradesh High Court determined that the entity on whose behalf the land-use restrictions were imposed lacked the legal standing (locus standi) to initiate a reference against the compensation established by the Collector.
Recently, an application was filed before the Supreme Court challenging the constitutional validity of the Act. The Supreme Court, in the case of Goya Resortd Pvt. Ltd. vs. Union Of India, agreed to examine the constitutional validity of the Act and issued notice to the Union of India.
Jambo Plastics Pvt. Ltd v. Chief Quality Assurance Establishment
In this case, the petitioners submitted an application to the Bruhat Bangalore Mahanagara Palike for approval of a residential plan. Unfortunately, the authorities rejected the application, stating that the petitioners needed to acquire a No Objection Certificate (NOC) from the Ministry of Defence. The authorities based their decision on the guidelines the Ministry of Defence provided regarding issuing NOCs for projects near defence sites.
However, the Court ruled that the Works of Defence Act applied to the relevant land. According to the Act, the petitioners were not obligated to obtain any NOC. When a statute establishes a framework for imposing restrictions, executive guidelines cannot supersede this framework. Therefore, the executive guidelines requiring an NOC could not be enforced in this situation, as the Works of Defence Act governed the specific area.
The Works of Defence Act is crucial in maintaining construction-free zones around defence facilities. However, in recent years, it has become apparent that the Act’s strict provisions have been causing difficulties for civilians residing near defence establishments.
The Act is quite dated, originating from a time when defence facilities were situated in forests and far from residential areas. As the population has expanded and industrialisation has accelerated, numerous residential communities have sprung up near these defence installations. This has created a demand to relax the Act’s rigorous provisions through appropriate legislative measures.
Frequently Asked Questions (FAQs)
Can construction be prohibited near a defence establishment without a Section 3 declaration?
The Central Government cannot impose restrictions under the Works of Defence Act without a declaration under Section 3. In Lok Holding and Construction v. Municipal Corporation of Greater Mumbai, the Executive Engineer prevented construction on the land citing the Act, but no Section 3 declaration had been issued. The Court affirmed the mandatory nature of the declaration.
Does the Works of Defence Act 1903 empower land acquisition by the Central Government?
Section 3 empowers the Central Government to acquire any land if it feels that such acquisition is necessary and expedient for the national interest.
Who has the power to make rules under the Works of Defence Act?
Under Section 44 of the Act, the Central Government has the power to make rules for the proper enforcement of the Act.
What is the provision for appeal from the decision of the Trial Court under this Act?
Section 43 allows for appeals against decisions made by the Court regarding proceedings under this Act to be made to the High Court.