Right to property has to be viewed with a different mindset than the mindset which was prevalent during the period when the concept of eminent domain was the embodied provision of fundamental rights : The Uttarakhand High Court

the Uttarakhand high court passed a judgement on 1st April 2021 in the case Rajesh sah and others v. state of Uttarakhand (writ petition no. 170 of 2018) the case was presided over by the Honorable Mr. Justice Sharad Kumar Sharma



The petitioners are the owner of 21.061 hectares of land, which was claimed to be situated at village Chakmoti Bagh, Tehsil, Nainital. In the proceedings, which was held under the Forest Act, before the Forest Settlement Officer; as defined under Sub Section (2) of Section 2 of the Act, there has been a specific case of the petitioners that they have been recorded in the revenue records, as owner of the land and in support thereto, the petitioners had placed on record the Khatauni of the land pertaining to 1420 to 1425 fasli and under the strength of which the petitioners contends that since they being the recorded owners of the property in question, they would be entitled for to be paid with the adequate compensation, as was to be determined by the Forest Settlement Officer, under the provisions of The Indian Forest Act, 1927 as provided under Section 11 of the Act.

 A notification being Notification No.6119/14-2-93-4(14) 92 dated 25.06.1993; was issued by the respondent State by invoking the provisions contained under Section 4 of the Indian Forest Act of 1927, intending for the declaration of land as a reserved forest, which included the land of the petitioners, as to be a part of acquired reserve forest. As a consequence of intention of the State to declare the land as to be a reserve forest and which was inclusive of the land, which was recorded with the petitioners, the Forest Settlement Officer by invoking the provisions contained under Section 6 of the Indian Forest Act, 1927 had issued a proclamation, and had invited the objections from the land owners by issuing a notification to the said effect on 10.07.1995. As a consequence of the notification, which was issued under Section 6 of the Act, soliciting an objection from the petitioners, as against the proposal of the State under Section 4, for declaration of reserve forest, in pursuance to the notification, which was issued under Section 4 of the Act, on 25.06.1993, admittedly, the records shows that the petitioners did file their objection, before the Forest Settlement Officer and as a consequence of it, it was instituted which was registered as Case No.37 of 1995-1996, with regard to the aforesaid acquisition proceedings for declaration of reserve forest, of the land of the petitioners, as referred above and for proceeding further for commutation as per Section 16 of the Forest Act, 1927


The logic for it is that if the Constitution of India is taken into consideration, particularly that as the provisions initially, which existed under Article 19(1)(f), where the right to property was contained and contemplated, under the Constitution and it was later, on omitted by the Constitution’s 44th Amendment Act, 1978, and it, stood protected by the provisions contained under Article 300 A, which was too was introduced and inserted by Chapter IV of the Constitution by its 44th Amendment Act, 1978, which provided that an owner of the property, which is a fact, not disputed in the present case, that it was vested with the petitioners, in an eventuality, if any interference over his estates, are required to be made, it could be made only, as per the authority of law and that is why the deprivation of a land belonging to the petitioners in order to bring the Act within the ambit of the provisions contained Article 300 A, the State has, had to have its recourse under Section 4, to be read with Section 6 of the Forest Act of 1927. Meaning thereby, the declaration of the land belonging to the petitioners, as recorded in the Khatauni, as a reserve forest, was as per the due process of law provided under Article 300-A of the Constitution. Consequently, for the reasons aforesaid writ petition fails and is dismissed.

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