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WORKS OF DEFENCE ACT, 1903
7 of 1903
20th March, 1903 Amending Act 39 of 1965.— The Indian Works of Defence Act, 1903 (7 of 1903) provides for the imposition of restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may. be kept free from buildings and other obstructions. The Act at present does not extend to some areas such as the territories which immediately before the 1st November, 1956, were comprised in Part B States. Hence it is not possible to impose restrictions which may be considered necessary upon the use and enjoyment of land around such defence works located in those territories. It Is, therefore, proposed to amend the Act so as to make its provisions applicable to the whole of India including the areas to which it does not at present extend. —Gaz. of Ind., 23-8-1965, Pt. II, S. 2, Ext., p. 817. Amending Act 50 of 1974.— The Indian Works of Defence Act, 1903, inter alias provides for the imposition of restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may be kept free from buildings and other obstructions. The restrictions under the Act are imposed through civil authorities, normally the Collector under section 37of the Act, if the Collector or the officer authorised under section 6is opposed or impeded in doing anything directed or permitted by the Act, he is empowered to enforce compliance if he is himself a magistrate and if not, he has to apply to a magistrate and in the cities of Calcutta, Madras and Bombay to the Commissioner of Police, who shall enforce compliance. Since the enactment of the Act, Commissioners of Police have been appointed for certain cities other than the presidency towns of Calcutta, Madras and Bombay. It is possible that the Commissioners of Police may be appointed in future for more cities also. With a view to enabling the Collector and the officer authorised under section 6to apply to the Commissioners of Police for enforcing compliance with the Act in any area for which a Commissioner of Police has been appointed. it is proposed to amend section 37of the Act suitably. 2. The Bill is mainly intended to achieve the above objects.—Gaz. of Ind., 27-11-1973, Pt. II, S. 2, Ext„ p. 949. An Act to provide for imposing restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may be kept tree from buildings and other obstructions, and for determining the amount of compensation to be made on account of such imposition.
WHEREAS it is expedient to provide for imposing restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may be kept free from buildings and other obstructions, and for determining the amount of compensation to be made on account of such imposition; It is hereby enacted as follows:—This Act has been declared to be in force in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), S. 3 Sch., and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), S. 3 and Sch. Khondmals and Angul districts are parts of Orissa State now Regn. 5 of 1936 has been repealed by Orissa Act 19 of 1967 w.e.f. 15-9-67. Regn. No. 4 of 1936 has been repealed in part by Orissa Act 1 of 1963, S. 69. The Act has been extended to Berar by Act 4 of 1941 (now part of the State of Maharashtra); to the new Provinces and merged States by the Merged States (Laws) Act, 1949 (59 of 1949), S. 3 (11-1950) and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories (Laws) Act, 1950 (30 of 1950), S. 3 (16-4-1950); Manipur and Tripura are now full-fledged States—See Act 81 of 1971; Vindhya Pradesh is a part of the State of Madhya Pradesh—See Act 37 of 1956, S. 9 (1-11-1956). The Act was extended to the Union territories of,— (1) Goa, Daman and Diu—Regn. 12 of 1962, S. 3(1) and Sch. (31-11963). (2) Pondicherry—Regn. 7 of 1963, S. 3 and Sch. 1 (1-10-1963). The Act was extended to and enforced on 1-3-1976 in Sikkim— See S.R.O. 16(E) of 1976 and S.O. 208(E) of 1975.
SECTION 01: SHORT TITLE AND EXTENT
(1) This Act may be called The b[* * * * *] Works of Defence Act, 1903; and 2[(2) It extends to the whole of India].
SECTION 02: DEFINITIONS
In this Act, unless there is something repugnant in the subject or context,—
(a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth;
(b) the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the imposition of restrictions upon the use and enjoyment of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;
a[(c) the expression "District" means one of the Districts into which India is, for military purposes for the time being, divided; it includes a Brigade area which does not form part of any District, and any area which the5[Central Government] may, by notification in the5[Official Gazette], declare to be a District for all or any of the purposes of this Act;
(d) the expression "General Officer Commanding the District" means the officer for the time being in command of the forces in a District;]
(e) the expression "Commanding Officer" means the officer for the time being in command of a work of defence;
(f) the expression "Collector" includes any officer specially appointed by the6[Central Government] to perform the functions of a Collector under this Act;
(g) the expression "Court" means a principal Civil Court of original jurisdiction, unless the7[Central Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act;
"Clause 2.—Owing to the altered procedure which we propose for adoption in Part II, the maximum period, which may elapse between the publication of the preliminary notice of a declaration to impose restrictions. and the issue of the subsequent notice calling for the presentation of claims to compensation, will, in ordinary cases amount to eighteen months, and this period may, with the previous sanction of the Governor-General in Council, be extended to three years. The actual proceedings in assessment up to the making of the award may not impossibly, at any rate in complicated cases, occupy a further period of a year. In these circumstances, houses and other constructions, which will be affected by the restrictions imposed under clause 7, may. unless the owner is given facilities feeping them in repair, fall into ruin long before the investigation for purposes of assessment is completed, with the result that the difficulty of proving the actual amount (i) the following persons shall be d the Bill will be greatly enhanced. Even where the emergent powers conferred, by clause 6, sub clause
(3), are exercised, a period of several months, during which the condition, more especially of small and unsubstantial structures may be seriously altered by rain, may easily elapse before demolition commences; and, in these cases the report of the demolishing officer with respect to the buildings demolished by him is not unlikely: from the necessity of the case, to be most tangible evidence to which the parties can afterwards appeal. We think it desirable, therefore, to define the expression "maintained" for the purposes of clauses 6 and 7, in such a manner as to leave unaffected the liberty to repair buildings and other constructions during the interval from the publication of the preliminary notice to the making of the award or, in case of emergency. to demolition in anticipation of the award."—S.C.R
(h) "maintain", with its grammatical variations and cognate expressions, does not, when used in relation to a house or other construction, include the doing of any act necessary for keeping such house or construction, until the making of the award referred to in section 12-or until the exercise, prior to the making of the award, of the powers of demolition conferred, in case of emergency, by section 6-, sub-sections (1) and (3), in the state in which it was at the time of the publication of the notice referred to in section 3-, sub-section (2);
(i) the following persons shall be deemed "entitled to act" as and to the extent hereinafter provided , that is to say,- trustees for other persons beneficially interested shall be deemed the persons entitled to act with reference to any case, and that to the same extent as the persons beneficially interested could have acted if free from disability; a married woman, in cases to which the English law is applicable, shall be deemed the person so entitled to act, and, whether of full age or not, to the same extent as if she were unmarried and of full age; and the guardians of minors and the committees or managers of lunatics or idiots shall be deemed respectively the persons so entitled to act, to the same extent as the minors, lunatics or idiots themselves, if free from disability, could have acted: Provided that—
(i) no person shall be deemed "entitled to act" whose interest in the subject-matter is shown to the satisfaction of the Collector or Court to be adverse to the interest of the person interested for whom he would otherwise be entitled to act;
(ii) in every case the person interested may appear by a next friend or, In default of his appearance by a next friend, the Collector or Court, as the case may be, shall appoint a guardian for the case to act on his behalf in the conduct thereof; (iii) the provisions of Chapter XXXI of the Code of Civil Procedure shall, mutatis mutandis, apply in the case of persons interested appearing before a Collector or Court by a next friend, or by a guardian, for the case, in proceedings under this Act; and
(iv) no person "entitled to act" shall be .competent to receive the compensation money payable to the. person for whom he is entitled to act, unless he would have been competent to alienate the land upon the use and enjoyment of which restrictions are to be imposed and receive and give a good discharge for the purchase-money on a voluntary sale.
SECTION 02A: CONSTRUCTION OF REFERENCES TO LAWS NOT IN FORCE, OR ANY FUNCTIONARY NOT IN EXISTENCE, IN ANY AREA
Any reference in this Act to any law which is not in force in any area or 'any reference therein to any functionary not in existence in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force or to the corresponding functionary, if any, in existence, in that area.]
SECTION 03: DECLARATION AND NOTICE THAT RESTRICTIONS WILL BE IMPOSED
(1) Whenever it appears to the 9[Central Government] that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended, to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders.
(2) The said declaration shall be published in the10[Official Gazette] and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in section 7-, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality,
(3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.
OBJECTS AND REASONS "Clause 3.—To prevent the recurrence of misconception, we have sought to render it clear that the initial declaration under this clause need only be accompanied by a "sketch plan", illustrating, by way of general notice to the public, the outline of the zones within which all or any of the restrictions specified in clause 7 will attach. The "de- tailed plan" referred to in clause 8 is a separate document which is required for the purposes of minute and detailed assessment of compensation and for the preparation of which the initial declaration cannot be postponed".—S.C.R.
SECTION 04: POWER TO DO PRELIMINARY ACTS AFTER PUBLICATION OF NOTICE UNDER SECTION 3, SUB --SECTION (2)
It shall be lawful for such officer as the11[Central Government] may, by general or special order, authorise in this behalf, and for his servants and workmen, at any time after publication of the notice mentioned in section 3-, sub-section (2), to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub-soil, to do all other acts necessary to ascertain whether any and, if so, what restrictions should be imposed on the use and enjoyment of the land, to set out the boundaries of the land upon the use and enjoyment of which restrictions are to be imposed, or of any part of such land, to mark such levels, boundaries and line by placing marks and cutting trenches, and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.
SECTION 05: PAYMENT FOR DAMAGE
The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other chief revenue officer of the district, and such decision shall be final.
SECTION 06: FURTHER POWERS EXERCISABLE AFTER PUBLICATION OF NOTICE UNDER SECTION 3, SUB --SECTION (2)
(1) Whenever a declaration has been made and public notice thereof has been given under section 3-, it shall, subject to the provisions of sub-sections (2) to (4), be lawful for such officer as the12[Central Government] may, by general or special order, authorise in this behalf, and for his servants and workmen, to enter and demolish any buildings or other constructions on the surface, to cut down or grub up all or any of the trees, to remove or alter all or any of the banks, fences, hedges and ditches, to make under ground and other drains, to fill up all excavations, and demolish all buildings and other constructions below the surface, and generally to level and dear the said land and do all such acts for levelling and clearing the same as he may deem necessary or, proper but in such manner nevertheless that evidence of the boundaries of the lands held by different owners may be preserved.
(2) The powers conferred by sub-section (1) shall not be exercised,—
(a) save as otherwise provided by sub-section (3), before the making of the award hereinafter referred to in section 12-, nor
(b) save as otherwise provided by sub-section (4), after the expiration of six months from the making of the said award, or any shorter period on the expiration of which the officer exercising such powers gives notice to the Collector that there will be no further exercise of them.
(3) In case of emergency, the12[Central Government]13[* *] may, by notification in the Official Gazette, declare that all or any powers conferred by sub-section (1) may be exercised at any time within six months after the publication of the notice referred to in section 3-, sub-section (2), and such powers may be exercised accordingly, and the said notification shall be conclusive proof of emergency.
(4) Nothing in sub-section (2) shall be deemed to preclude any such officer or his servants or workmen from exercising at any time the said powers for the purpose of removing, wholly or in part, any building or other obstruction maintained, created, added to, altered, planted, slacked, stored or otherwise accumulated in contravention of this Act or of any rule or order made there under or of any condition prescribed in accordance therewith.
OBJECTS AND REASONS "Clause 6.— The original Bill, following the lines of the Defence Act, 1860(23 and 24 Vict., c.
112),section 34-, purported, in all cases, to authorize the exercise of the powers of demolition conferred thereby after the expiration of fourteen days from the preliminary notice. On the other hand, it restricted to six months the period of three years during which, under the English Statute, acts in pursuance of those powers must be completed. One result of this abridgment of time was that the issue of the notice calling upon persons affected to present their claims for compensation was postponed until after the demolition was complete. We think that this procedure is, in several respects, capable of improvement. At the outset, we see no necessity, in ordinary cases, for exercising any power of demolition until after the Collector has completed his assessment and made his award. On the contrary, it will be difficult, if not impossible, to arrive at a really reliable estimate on the basis of statements relating to structures which have ceased to exist. In the case of emergency, the exigencies of defence in this country may render impracticable the delay of fourteen days, which, on the analogy of peace conditions in England, the original Bill would have rendered obligatory in all circumstances alike. We propose to recognize the distinction by enacting expressly that the acts of demolition, for the completion of which we would retain the very abridged period of six months, shall not commence until after the making of the award; and from this rule we would except only the case, not of mere urgency as contemplated by the Land Acquisition Act, 1894, section 17-, but of actual emergency sufficiently grave to warrant a notification to which the previous sanction of the Governor-General in Council is required. As an additional safeguard, we suggest that emergent power, so notified, shall not be exercised after the expiration of a period of six months after the publication of the preliminary notice. Having thus narrowed down these powers to absolutely extreme cases, we consider it inexpedient to hamper the discretion of the officer exercising them by accepting a suggestion to enact a proviso directing, on the analogy of the Land Acquisition Act, 1804, section 17-, sub-section (1), that no build in shall be entered or demolished without giving the occupier reasonably sufficient notice to enable him to remove his moveable property without unnecessary inconvenience. To give as much notice as appears reasonably practicable is always a convenience to all parties concerned: but we are reluctant to prescribe, for cases of emergency, a proviso, necessarily in general terms, which would only result in claims raising the difficult quest on of fact whether, in the particular circumstances, an hour or two longer might or might not have been allowed."—S.C.R.
SECTION 07: RESTRICTIONS
From and after the publication of the notice mentioned in section 3-, sub-section (2), such of the following restrictions as the14[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 b[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 he stacked, stored or otherwise accumulated: Provided that, with the written approval of the c[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 b[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 the following additional limitations, namely:—
(i)17[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 the14[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 the15[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 the15 [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,18[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.
SECTION 08: LAND TO BE MARKED OUT, MEASURED, REGISTERED AND PLANNED
As soon as may be after the publication of the declaration aforesaid, the Collector shall cause the land to be marked out and measured, and shall also prepare a register and a detailed plan, which shall be on a scale not smaller than six inches to the mile, showing accurately every building, tree and other obstruction.
SECTION 09: NOTICE TO PERSONS INTERESTED
(1) At any time before the expiration of—
(a) the period of eighteen months from the publication of the declaration referred to in section 3-, or
(b) such other period not exceeding three years from the said publication as the19[Central Government]20[* * *] may, by notification in the c[0fflcial Gazette] direct in this behalf, the Collector shall cause public notice to be given at convenient places on or near the land, stating the effect of the said declaration and that claims to compensation for all interests in such land affected by anything done or ordered in pursuance of such declaration may be made to him: Provided that, where anything has been done in exercise of the powers conferred, in case of emergency, by section 6-, sub-section (3), the notice prescribed by this section shall be given as soon as may be thereafter.
(2) Such notice shall state the particulars of any damage ordered to be done or, in the case referred to in section 6-, sub-section (3), done in exercise of any of the powers conferred by the said section, and the particulars of any restrictions attaching to the land under section 7-, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days 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 damage to such interests and their objections (if any) to the measurements made under section 8-. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) 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 therein, or to 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 situate.
(4) In case any person so interested resides elsewhere, and has no such agent the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business.
OBJECTS AND REASONS "Clause 9— Our proposal, as explained under clause 6, to postpone the exercise of powers of demolition, except in emergent cases, until after the award referred to in clause 11, removes the principal reason for fixing at six months the period after which the second notice calling for claims to compensation must issue. It is necessary to fix some definite period because clause 38 invests the Local Government with a power of withdrawal from the initial declaration and, if the survey, planning and valuing operations preliminary to the actual assessment owners, whose property is transferred in the interim and who cannot, therefore, claim compensation, may suffer owing to the deprecated market-value. There seems to be a consensus of opinion that six months will often be insufficient for the purpose; but a period of three years over which the proceedings under the Statute may extend, will not usually be required; and we would; therefore suggest eighteen months which with the previous sanction of the Governor-General in Council, may be extended to three years. Where emergent powers are exercised under clause 6, sub-clause (3), any lapse of time after the demolition of a building in creases the difficulty of proof of damage; and in such cases, therefore, we think it reasonable to impose upon the periods defined in sub-clause (1) the further limitation that notice must be given as soon as may be after the exercise of any such power. We have defined with greater distinctness, in sub-clause (2), the particulars to be contained in the second notice calling for claims. A precise statement of damage caused or to be caused under clause 6 will be necessary in view of the altered procedure by which the award will ordinarily precede such damage. A consequential amendment has been made in clause 13, sub-clause
(1). From sub-clause (4), the reference to registration under the Indian Post Office Act, 1898-VI of 1898), has been omitted as sufficiently covered by the General Clauses Act, 1897-(X of 1897),section 27- A similar alteration will be found in the proviso to clause 3l, sub-clause (3)."—S.C.R.
SECTION 10: POWER TO REQUIRE AND ENFORCE THE MAKING OF STATEMENTS AS TO NAMES AND INTERESTS
The Collector may also require any such person to make or deliver to him, at a time and place mentioned (such time not being earlier than fifteen days after the date of the requisition), a statement containing, so far as may be practicable, the name of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits (if any) received or receivable on account thereof for three years next preceding the date of the statement,
SECTION 11: APPLICATION OF CERTAIN SECTIONS OF THE INDIAN PENAL CODE
Every person required to make or deliver a statement under section 9-orsection 10-shall be deemed to be legally bound to do so within the meaning of sections 175-and176 of the Indian Penal Code-
SECTION 12: INQUIRY AND AWARD BY COLLECTOR
On the day fixed under section 9-or on any other day to which the inquiry has been adjourned, the Collector shall proceed to inquire into the .objections (if any) which any person interested has stated pursuant lo a notice given under the said section to the measurements made under section 8-, and into the decrease in the value of the land, and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of—
(a) the true area of the land and the nature of the obstructions from which the land is to be kept free;
(b) the compensation which in his opinion should be allowed for any damage caused or to be caused under section 6- and for any restrictions imposed under section 7-; and
(c) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether they have respectively appeared before him or not.
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