HONOURABLE SRI JUSTICE P. NAVEEN RAO PIL Nos. 62 and 82 OF 2014, W.P.Nos. 5772, 5782 and 11321 of 2014 Date: 26.9.2014 PIL No. 62 of 2014 Between :
Mani Enclave Residents Welfare Association, Yapral, Secunderabad – 500 087 Rep by its Secretary Sri Madan P.N and others and Union of India, Rep by its Secretary, Ministry of Defence, New Delhi and others … Petitioner … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO PIL Nos. 62 and 82 OF 2014, W.P.Nos. 5772, 5782 and 11321 of 2014 COMMON ORDER:
All these cases arise out of decision taken by the General Officer-Commanding, Andhra Sub Area to restrict the movement of civilian vehicles on 1) Entrancement Road: from S.P.road/East Marredpally to Allahabad gate; 2) Wellington Road : from Secunderabad club to Allahabad gate; 3) Ordinance Road: from Safilguda junction towards safilguda railway crossing; 4) Gough Road: from Kendriya Vidyalaya crossing to East /West Marredpally;
5) Mornington Road: from Tirumulgiri Hanuman temple to Gough road of AOC centre 6) Valerian Grammer School to Golf Course; 7) Trinity Church road 8) Eagle Chowk to RSI to Lal Bazar road and 9) Ammuguda junction to Eagle Chowk within Secunderabad Cantonment area. Petitioners are civilians who claim to commute on these roads to reach out to various places in the twin cities of Hyderabad and Secunderabad. On 29.4.2014 a detailed order was passed making the earlier interim orders absolute and posted the cases for further hearing. Aggrieved by the orders dated 29.4.2014, Writ Appeal No. 945 of 2014 was filed. The Division Bench of this Court by order dated 17.6.2014 directed as under:
“11. We have seen the impugned order and it does not appear that the Hon’ble trial Judge was supplied with the classified confidential documents, which are placed before us, for consideration. Having looked into them, we have no doubt in our mind that these documents need serious consideration of His Lordship and there were not considered by His Lordship. We also note that His Lordship has no opportunity to deal with the relevancy of the Division Bench judgment of this Court in relation to the issue raised by the appellants before us.
12. Learned counsel for the writ petitioners say that the aforesaid decision is distinguishable. We feel until and unless it is held so by the Hon’ble trial Judge, we cannot examine this contention. According to us, this matter requires re-look, so also prima facie findings of the Hon’ble trial Judge and observations in relation to the issues. We are of the view that any exercise without consideration of the aforesaid classified confidential document and the judgment of the Hon’ble Division Bench, cannot be said to be a proper judicial one even at the interlocutory stage.
13. We, therefore, request the Hon’ble trial Judge to re-examine the matter taking note of above material and the judgment of Division Bench and to come to a fresh conclusion on the merits and demerits of the case on the next date of hearing, which was fixed on 23.6.2014 (only five days away)…”
Hence, these writ petitions and Public Interest Litigations are heard and disposed of by this order.
2. Heard Sri D.Madhava Rao, Sri P.Rajasreepathi Rao, Sri Avinash Desai, Sri Prabhakar Peri and Sri Md.Mohinuddin learned counsel appearing for petitioners and Sri P Vishnuvardhan Reddy, learned Assistant Solicitor General and Sri B.Sudhakar Reddy, learned standing counsel for Central Government appearing for Union of India, Sri Y.V.Ravi Prasad, learned senior counsel and Sri Deepak Bhattacharjee learned counsel appearing for Secunderabad Cantonment Board, Smt A.Deepthi, learned standing counsel for Greater Hyderabad Municipal corporation, learned Government Pleader for Revenue and learned Government Pleader for Home.
3. Sri D. Madhava Rao, learned counsel appearing for the petitioners in PIL No. 62 of 2014 submitted that the roads which Army claims to be belonging to it and restrictions can be imposed on civilians are not the roads belonging to Army; they are the State Government roads and Army has no authority or competency to impose restrictions on the movement of civilians. Learned counsel submitted that as per the provisions contained in Cantonment Rules, 1937, the properties in cantonment area are classified into various categories. Properties which are falling within category A1 alone vests in the Army and have exclusive right to use those properties. Category A1 specifies the purpose for which the properties vests in the Army. The roads which are the subject matter in these cases, are not part of lands classified as A1 lands and these roads are not internal roads made within A1 category lands and, therefore, Army has no control over these road and the control of the roads vest in the Secunderabad Cantonment Board.
4. Learned counsel further submitted that as admitted by the Cantonment Board, as well as Defense Estate Officer, all these roads which are now sought to be blocked are maintained by the Secunderabad Cantonment Board (SCB). Referring to the provision contained in Rule 6 and 9 of the Cantonment Rules, 1937, learned counsel submitted that the Roads which are maintained by the SCB are the roads which vests in the Board. There are no proceedings which authorize the SCB to undertake maintenance of the roads which actually vests in Army. There cannot be an oral understanding between one Government authority and another government authority, whereby and where-under the Cantonment board is entrusted to maintain the internal roads of the Army classified as category A1.
5. These roads were in existence much prior to independence when the State was ruled by the then Nizam. During the rein of Nizam, there was an understanding between Nizam and British Government, whereunder 13 villages, called as ‘moglai villages’ which are not treated as part of Secunderabad Cantonment were temporarily assigned to British Government and after British left India, the lands reverted back to the Nizam and these lands never vested in the Government of India. These lands vested in the State of Andhra Pradesh (now State of Telangana).
6. Even assuming that the lands vest in the Central Government, these roads are in use by the civilians for decades dating back to 19th century and are not the roads formed by the Army as part of construction of various establishments as mentioned in Category A1. These roads are continued to be used by civilians as well as Army. No proceedings are filed to show that these roads are constructed for the first time by the Army after the land is vested in them and roads were used for internal use of the Army authorities within Category A1 lands. He therefore submitted that the roads which civilians are now using cannot be blocked by the Army.
7. Learned counsel submitted that in PIL No.361 of 2012, the subject matter was use of road described as ‘Empress road’. Learned counsel submitted that it is a 300 meter length road which connects to the main road from within residential colony of the Army Officers. It is an internal road within Army quarters. This road was used by the civilians. The Army objected for using of the said road. Army has taken the defense that empress road is an internal road within the Army barracks and Army is maintaining the roads. This stand was not disputed. In the said factual background PIL No. 361 of 2012 was dismissed. In the instant case, the very stand of the Army authorities that the roads which are sought to be blocked are classified as A1 category properties, is disputed and so far no authentic material is placed before the Court to substantiate the claim of the Army. The material on record clearly substantiate that these roads are being maintained by the Cantonment Board. Thus, these are distinguishing factors and, therefore, decision of the Division Bench in PIL No. 361 of 2012 has no application to the facts of this case.
8. With reference to training aspect, learned counsel submitted that there are separate training grounds where regular training takes place. Roads are not used for regular training. To discipline the erring jawans, they were asked to walk or run on the roads for longer distances and only in such circumstances, the subject roads are used. The annual training report of the Army authorities would show the nature of training administered and place where training is administered. The annual report is not placed on record. Learned counsel, therefore, disputes the stand of the Army that the training activity is disrupted on account of huge traffic flowing on these roads. As with reference to security concerns, learned counsel submitted that so far no untoward incidence is reported and therefore the security concern is blown out only to stop civilians from using these roads. The Army authorities can take precautionary steps to protect the installation without blocking the roads.
9. Sri Peri Prabhakar, learned counsel appearing for petitioners in W.P.No. 5782 of 2014 submitted that Secunderabad Cantonment is governed by Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930. As per Rule 3, the Army Estates Officer is given the responsibility to prepare and maintain General Land Register of all lands in Cantonment. Rule 6 deals with classification of land. For the purpose of maintaining General Land Register, the Cantonment land is divided into three categories. Category A1 lands used for Government authorities, Army or civilians. Learned counsel placed reliance on the Note appended therein which clearly state that nothing in those rules shall apply to lands in 13 villages referred to in the Notification No. 41 dated 28th August, 1906. Learned counsel submitted that 13 villages are the villages through which these roads are formed. Learned counsel further submitted that the GLR filed by the respondents only speaks about the area which is used for Army and exclusive survey number is assigned for the Army roads. The total extent of Cantonment area is of thousands of acres, whereas the GLR extract filed only deals with small extent, he therefore submitted that GLR filed only relates to Army roads.
10. Respondents have not filed any material to show which particular area is earmarked as Category A1 and exclusively vested in the Army authorities. Unless there are specific orders to this extent, Army cannot assume that it is classified into Category A1 land and Army cannot assume that the roads which are being used for decades by the civilians are also to be classified as A1 category lands. Learned counsel submitted that the responsibility vests in the defense to produce proof of allotment of land and unless specific orders are issued in this regard, the land does not become category A1. To buttress his contention, learned counsel placed reliance on Rule 6 of 1937 rules, which also mandate that there must be a specific order classifying the land as Category A1.
11. Learned counsel submitted that these lands are maintained by Cantonment Board and when once roads are maintained by the Cantonment Board, the roads vests in Cantonment Board. In support of his contentions, learned counsel placed reliance on provision contained in Section 120 (g) of Cantonment Act, 2006. Once lands/roads vest in the Cantonment Board, Army has no authority to impose any restrictions. According to Section 258 of the Act, no public road can be closed without first putting the citizens on notice, calling for their objections and after considering the objections passing a reasoned order.
12. Sri Raja Sripada Rao, learned counsel appearing for petitioners in WP No. 5772 of 2014 submitted that these roads are in existence much prior to independence and part of 13 Mughlai villages. These roads are not made by Army. Learned counsel submitted that the Army authorities have not produced any orders by which the properties which are claimed by the Army as belonging to them are vested in them including the roads which are now used by the civilians. Army has not established with concrete material to show that these roads were formed by the Army and there after maintained. On the contrary, the village maps clearly show the existence of these roads. Thus, these roads have been used by the civilians as well as Army. The classification given under Rule 6 of the 1930 Rules also envisages such common usage. As admitted by the Cantonment Board, Defense Estate Officer and Army authorities, these roads have been maintained by the Cantonment Board. The Cantonment Board is a civic body and revenue is generated from the civilians. The public money is spent for maintenance of these roads for decades. Therefore, Army cannot say that these roads are exclusively to be used only by the Army authorities and that the civilian cannot use. Learned counsel also disputed the GLR extract filed by the respondents and submitted that GLR only refers to the extent of area covered by the Army roads and does not deal with the entire extent of land in Cantonment area.
13. Learned counsel submitted that these roads are in use for decades. There has never been an objection. No untoward incident is reported. Several colonies have come up in and around the area. These roads are shown as approach roads to the main city centre and Army has never objected to establishment of civilian residential colonies around the AOC centre. Army authorities have never objected for use of these roads by civilians. If these roads are blocked, civilians have to cover longer distances to reach their destinations. The alternative roads are very narrow and not useful for heavy traffic. As deposed by the authorities of the State Government, it is not possible to regulate the traffic in the alternative roads, as these roads are already choked. The alternative roads were originally laid as part of residential colonies by the developers; they are narrow and cannot take load of heavy volume of traffic. At many places, the roads are so narrow and whenever two big vehicles come in opposite direction there is blockage of traffic leading to traffic congestion for hours together. As contended by the police authorities, there are two or three railway crossings and as there are no flyovers, gates are to be closed when trains pass through and it is busy track and trains regularly pass through. That whenever a train passes, there will be a stoppage of traffic for atleast 5 minutes and 5 minutes time is sufficient to create traffic jam for hours. Thus, there will be heavy inconvenience to civilians. He further submitted that as stated by the civilian authorities never issue was raised by the Army and suddenly a decision has been taken overnight to stop traffic.
14. Learned counsel further submitted that security concern appears to be not so grave as projected. Army authorities have also stated that they will slowly introduce blockage of traffic over a period of time spread over six months, which would show that concern of the Army is regarding increase of civilian traffic on these roads and causing obstruction to the training process more than the security concern. Learned counsel seriously objects the usage of terminology by the Army as unauthorized usage of roads by the public. The roads are not used by the public unauthorisely. They are not private roads or a private estate; Army is also part of the Government and roads are made by using the public funds and use of the roads by the public cannot be treated as unauthorized or illegal use. Having failed to discharge its burden in establishing that these are internal roads of Army and having failed to prove that these roads are part of the lands categorized as category A1, the Army authorities cannot use the word unauthorized public usage.
15. He further submitted that the contention that the subject roads in the Army area were given single survey number is incorrect. Army is illegally treating all the existing village roads as Army roads. Petitioners have demonstrated that the subject roads are village roads.
16. GLR is prepared with reference to ownership but not for roads. As per the judgment of the Punjab and Haryana High Court, solution has to be worked out in consonance with the civil administration and when station head is taking a major decision to close the roads for security reasons, he needs to consult the civil administration. The decision taken in the present case is unilateral and no consultations were made before deciding to impose restrictions on the roads.
17. Sri Avinash Desai, learned counsel for petitioners submitted that GLR extract of 1933 at page 39 mentions nature of the holders (occupier) and in 1956 it becomes a Government property. Roads which are being used by public come within Ac.242 and the said roads are not the internal roads inside the Barracks of the Army. Unamended Rule 3 (2) (e) (f); Rule 13 (3) (d) of 1937 Rules mandate exclusion of roads used by public even if said roads are built by Army. Maps show that subject roads are village roads, as such the said roads should be excluded from the Army holding. Rule 3 was amended and the amended provisions excludes said requirement. The Unamended provisions apply to these roads. In the year 1930 there were no A1 classified roads, there were only A, B and C categories. 1930 Rules do not provide for holding of land. They only provide for occupation in Secunderabad Cantonment area. Para 5 of the counter affidavit says that All Saints School road is classified as A1 road and it was handed over to R & B Department. It is not explained how this could have been done. If the said road is classified as A1 without sanction of the Central Government, public cannot be permitted to use A1 classified roads. This would only show that these roads are not exclusively earmarked to Army. Both civilians and Army personnel have been using these roads for decades.
18. Security concern may exist in other parts of the city also and the solution for it is not by closure of the roads or diverting the traffic to other roads. Security concerns needs to be addressed separately by the concerned agencies but the Army authorities cannot close the roads claiming proprietary rights.
19. Sri Prabhakar Peri and Sri Avinash Desai referred to BARTON REPORT in support of their contention that these roads are not laid by army authorities, but have been in existence for several decades.
20. Sri Vishnuverdhan Reddy representing Union of India made elaborate submissions.
21. Learned counsel seriously disputed the stand of the petitioners that these roads are not the roads belonging to Army, that these roads are being used by civilians from times immemorial and the roads were formed much prior to coming into existence of the Cantonment and the Army establishments. He contended that no material is shown in support of their stand. On the contrary, the GLR of 1956, GLR 1933 and GLR Map 1955-56 re-prepared in the year 1983 would disclose that these roads are Army roads formed by the Army authorities as internal roads for the convenience and use of Army units and not intended for public use. He submitted that Gough Road and Ordnance road were not in existence earlier. These roads were built subsequently by the Army. He strenuously denied that these roads were in existence from time immemorial. In support of his contention, he placed reliance on the averments made by the Defence Estate Officer in his counter-affidavit, deposed on 14.03.2014 and the counter-affidavit of Executive Officer of Secunderabad Cantonment Board, deposed on 20.03.2014.
22. Learned Assistant Solicitor General further contended that the entire area is classified as category-A1 lands and exclusively vested in the Army. Several Army establishments have come up in the lands allocated for the Army and for the purpose of commuting within the Army area roads are formed. These are narrow roads formed with an objective of catering to the needs of the Army. All these roads were not meant for public use. He submitted that normally the standard road size would have been much wider if meant for civilian use and during this stretch several establishments would have come up over a period of time as is the case in other places if these roads are not part of Category-A1. Merely because the civilians are allowed to use these roads would not change the character of the roads. These roads were constructed on A1 category lands and, therefore, form part of Army lands. Since the lands belong to Army, the competent authority is entitled to impose restrictions for valid reasons. The General Officer Commanding, Andhra Sub Area is competent to manage class-A1 defence lands and to maintain security and order.
23. A combined reading of Rules, 4, 5, 6, 9 and 14 of Cantonment Land Administration Rules, 1937 would bring out that the sole authority, control and responsibility regarding Class-A1 defence land rests with Local Army Authorities. As per para-23 (a)(ii) of Regulations for the Army, 1987 issued by Ministry of Defence, the Station Commander is responsible for measures necessary for ensuring the security of the station including the safe custody of all army installations. Furthermore, as per Rule 2(ii)(d) of Acquisition, Custody, Relinquishment, etc. of Army Lands in India (Rules, 1944), the Army roads are under the overall control of Quartermaster General, Army Headquarters, and as per para 5 (iii), immediate control is vested in Local Army Authority. Thus, the Commandant of the Local Army centre is entitled to take decisions to protect the properties of the Army, safeguard the installations and to take adequate measures for the welfare of Army personnel and other aspects.
24. Learned Assistant Solicitor General justified the restrictions imposed on two grounds. Firstly, the restrictions are necessitated on account of serious internal security threats; and secondly, the AOC Center has large contingent of approximately 2500 Jawans; many of them are newly recruited and require extensive training. Various types of training is administered here; daily routine activities include physical training, parade and running 5 KMs on the roads during morning time. Movement of troops for weapon training, map reading exercises, lectures, demonstrations and driving training which include heavy and light vehicles on these roads through out the day. During the evening hours, troops are required to carry out physical training, assault course training, cross country practices. Apart from this, the Army personnel participate in sports activities. Troops are also required to move for withdrawing and depositing the weapons, meetings, conferences, sick report, collection of rations, day and night guard duties at various locations in addition to other duties required to be carried out round the clock. He, therefore, submitted that entire day, the troops criss-cross from one area to another area. On account of heavy flow of traffic, this activity is greatly impaired and caused lot of inconvenience in programming the training activity. The personnel are also complaining of huge inconvenience caused to them.
25. He further submitted that in addition to various kinds of training activities taken up, the Secunderabad Cantonment caters to the Army personnel, who earlier served in the difficult and inhospitable area, counter insurgency area, high altitude area, field and remote areas and come to Secunderabad as a cool of period, but utilize the period also to hone their skills and live peacefully before they being deputed again to those areas. The soldiers expect the peaceful and comfortable living during the period of their stay. On account of the present traffic and movement of civilians, the soldiers continuously live under stress and strain and very purpose of their being posted here is not achieved. The sanctity of AOC center as one cohesive establishment has been completely lost on account of heavy civil traffic conditions and restrictions are imposed immediately.
26. He contended that large number of troops are being trained here, and it is a soft target for the extremists / anti social elements/ terrorist outfits. Terrorist carry out regularly attacks on security forces in Jammu Kashmir and Assam. As per the inputs from the security agencies, there is imminent security threat in Hyderabad and such sensitive information relating to security cannot be shared in public. Thus, on 22.2.2014 proceedings were issued by the Battalion commander imposing restrictions on the traffic and closing the army roads for civil vehicles. Security threat aspect was not mentioned since it would adversely affect the morale of the army and anti social groups operating in the country would take advantage of the same. Initially night traffic was restricted. In a phased manner, restrictions are sought to be increased to pave way for the public to habituate to use the other public roads. It is important for the army to protect itself from the security threats so as to protect the nation and the public at large.
27. Some inconvenience may be caused to the general public if the subject roads are closed or restrictions are imposed, but the same cannot be a ground to compromise with the security of the nation at large. If security aspect is ignored, integrity and sovereignty of the country will be affected. The decision to impose restriction on the army roads was not taken in haste but it was taken considering the inputs received from security agencies such as Intelligence Bureau (IB), Army Intelligence, Research and Analysis Wing (RAW). Lashkar- e-Toiba is an international terrorist organization and posing threat to several nations including India. Keeping in view the changed circumstances, the Government of India has formed National Investigation Agency (NIA) to effectively fight the terrorists. It is known to every one that every day about Rs.50 to 60 lakhs fake currency notes are being poured into India through the borders at Malda district of West Bengal alone. The width of the Army roads is 20 feets and if there is no checks any person can tress pass into it. No private building or private establishments exist on the subject roads. If any vehicle enters into any unit of the army there will be security threat.
28. While answering the contentions of the learned counsel for petitioners that Army is not authorized to restrict the traffic on the subject roads, he stated that Section 2 (5), (8) (a) to (d) and Section 3 of the Official Secrets Act prescribes that even on places not actually vested with the Government also the Army has power to impose restrictions. As provided in Section 2 (8) subject place is a prohibited place since it is a work place of Army and storage place of ammunition. It is a prohibited place and civilians have no right to tress pass. Section 2 (8) (d) specifically refers to road. Section 2 (8) (a) to (d) are to be read harmoniously for the purpose of understanding the definition of prohibited places.
29. Though Army is empowered to impose restrictions at a short notice taking into consideration, the security concerns, but with a view not to cause any inconvenience to civilians, civil administration and police officials were appraised. To avoid inconvenience to the public, Indian Army has taken all steps to educate the public and has not closed the roads over night and prepared a schedule and decided to impose restrictions in a phased manner from time to time. Army is allowing the emergency traffic and school buses. Initially restrictions were imposed in non-peak hours and civil administration was given time to develop the infrastructure around the Secunderabad Cantonment Board area and thereafter full time restrictions from 1st October, 2014 so as to adjust the public to habituate themselves to use the alternative roads. That the orders of the Hon’ble Division Bench are now being implemented. Imposing restrictions in a phased manner cannot be seen as lowering the guard.
30. He further submitted that there are several alternative roads to cater to the needs of civilians. For many of them, these roads are not connecting roads and in fact they have to cover a long distance to their destinations by using these roads. On account of better maintenance and up keep of these roads with less traffic restrictions, traffic signals and traffic police, the civilians are adopting use of these roads. There are better alternative roads which they have to use for their commuting. Maintaining those roads properly /widening them is the responsibility of the civil administration and merely because the civil administration has failed, Army cannot be put to inconvenience and hardship. Ultimately, well equipped Army would only serve better for the security of the country and peace and harmony for every citizen.
31. Learned counsel submitted that the individual inconvenience to some of the citizens cannot over weigh, the more important requirement of ensuring proper security to the Army establishments, proper facilities for the troops to undergo training that is required and they have to feel comfortable in attending to their training activity. Such restrictions are imminent in the larger public interest.
32. Learned Assistant Solicitor General submitted that petitioners are not aggrieved by the restrictions imposed. He submitted that petitioner in PIL No.62 of 2014 is residing in Yapral, which is 6.5 KMs away from AOC centre and by no stretch of imagination he can claim as a person affected directly or indirectly by the restrictions imposed by the AOC Centre. Petitioner in PIL No.82 of 2014 residing in Chilkalguda area and is 4.5 KMs away from AOC centre. Thus, he cannot also be described as a person affected directly or indirectly because of the restrictions imposed by the AOC Centre. He contended that petitioner in W.P.No.5772 of 2014 is resident of Trimulgherry, which is served by Rajiv Rahadari Road (State Highway), All Saints road and other roads connecting to Secunderabad Cantonment and GHMC roads and is no way affected by proposed restrictions. Similarly, petitioners in W.P.Nos.5782 of 2014 and 11321 of 2014 are residents of Malkajgiri, which is away from the AOC centre and is crow flying distance of Secunderabad Railway Station and suitably served by several other roads. He is no way concerned with the AOC centre. Petitioner in WP 11321 of 14 resides in Malkajgiri area which is far away and petitioner has not stated as to how he would be affected by decision of the respondent authorities. Affidavits of the writ petitioners are silent as to how they are affected due to blockage or closure of the roads. The respective petitioners are having alternative connecting roads which they can use for their needs. AOC is centrally situated, covered by State Highway and R & B roads. No restrictions are made on Hyderabad Karimnagar high way and the users of said road are no way affected. Therefore, there is no cause for petitioners to complain.
33. Learned counsel further submitted that army authorities are in receipt of proposal by the GHMC dated 16.7.2014 and said proposal is under active consideration and would respond appropriately to the GHMC.
34. On the status of roads in issue, several documents are filed on behalf of the petitioners and respondents. Extensive submissions are made. Power point presentation was made. Several maps are filed. Learned counsel on either side cited plethora of decisions.
I have carefully analysed all the decisions cited by the counsel.
35. (i) Sri D Madhava Rao relied on UNION OF INDIA
[1]
AND OTHERS Vs S.M. HUSSAIN RASHEED AND OTHERS
(ii). Sri Raja Sripathi Rao relied on CONSUMER [2] ACTION GROUP v. STATE OF T.N ., SODAN SINGH v. NEW
[3]
DELHI MUNICIPAL COMMITTEE , and judgment of Punjab and Haryana High Court in WP 20615 OF 2009.
(iii). Sri Prabhakar Peri relied on UNION OF INDIA REP BY ITS SECRETARY TO CENTRAL GOVERNMENT, MINISTRY OF DEFENCE Vs. VASAVI COOPERATIVE HOUSING SOCIETY LIMITED[4] JAGAN NATH CHARAN DAS Vs. THAKAR DAS KALIAN DAS
[5]
, PHIROZE TEMULJI ANKLESARIA Vs.H.C. VASHISTHA
[6]
AND OTHERS R.VENKATRAM REDDY AND ANOTHER Vs.
[7]
JETAMONI GOURAMMA and ROSHAN MINOO PATEL AND
[8]
OTHERS Vs UNION OF INDIA
(iv). Sri Mohd Mohinuddin relied on PRADIP J MEHTA Vs
[9]
COMMISSIONER OF INCOME TAX, AHMEDABAD , THE COMMISSIONER OF INCOME TAX VS. M/S/ B R
[10]
CONSTRUCTIONS and UTTARANCHAL ROAD TRANSPORT
[11]
CORPORATION Vs MANSARAM NAINWAL .
(v). Sri Avinash Desai relied on UNION OF INDIA Vs [12] NAVEEN JINDAL AND ANOTHER and BOJE EMMANUEL AND
[13]
OTHERS Vs STATE OF KERALA AND OTHERS 36 (i). Sri Vishnuvardhan Reddy, relied on following decisions.
Judgment of Division Bench of this Court in PIL No. 361 of 2012 dated 12.11.2012, M. BALARAM Vs. BSNL REP. BY CHIEF
[14]
GENERAL MANAGER ,Mrs. T. NIRMALA Vs. SUB AREA
[15]
COMMANDER AND OTHERS, (cited supra) and VASAVI COOPERATIVE ( i i ) Sri Deepak Bhattacherjee relied VASAVI COOPERATIVE HOUSING SOCIETY LIMITED AND OTHERS (cited supra) (iii) Sri Y V Ravi Prasad relied on : Dr. NITIN G KHOT AND OTHERS Vs. STATION COMMANDANT, BELGAUM CANTONMENT, BELGAUM AND OTHERS
[16]
.
37. The issue for consideration is whether Army can impose restrictions on use of the subject roads. In these cases there is no title dispute to lands in issue. I have given anxious consideration to the rival submissions.
38. There is no dispute about the existence of AOC center and other Army establishments. These establishments include fortifications, barracks, stores, arsenals, aerodromes, bungalows for Army officers, parade grounds, Army recreation grounds, rifle ranges, grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of the Regulations for the Army in India and other official requirements of the Army Authorities. These establishments answer the classification of defence lands provided in Rule 5(1) of the Cantonment Land Administration Rules, 1937. The subject roads form part of lands shown as belonging to Army in the GLR.
39 The first five roads crisscross AOC center and all these roads connect to various establishments of the Army and are also used for training purposes and movement of troops and machinery. As demonstrated by the learned Assistant Solicitor General, there is no civilian establishment within AOC centre. There is no civilian property on these roads. These roads were meant to be internal roads for army and are narrow (20 feet only).
40 UNION OF INDIA Vs. MOHAMMED MAHIUDDIN AND OTHERS, concerns denial of sanction of lay out plan by Secunderabad Cantonment Board. Learned single judge and Division Bench held in favour of the petitioners. Supreme Court reversed the judgments rendered by this Court. As noted by Supreme Court in the judgment dated 28.11.2003 in Civil Appeal Nos. 6877—6881 of 2000 and batch, the issue in the batch of cases concern the ambit and scope of Section 181 of Cantonment Act (Old). However, while considering the issue for consideration, the Division Bench of this Court recorded the history of establishment of Secunderabad Cantonment as under:
“39. During the year 1776 a treaty was arrived at between the British East India Company and the Nizam of Hyderabad whereby it was agreed to provide a subsidiary Force as required by the Nizam and by the Treaty of 1768 the British Government undertook to provide Nizam with two battalions and Sepoys. By a Treaty of 1788 a resident was appointed at Hyderabad; that during the year 1798 by a Treaty the subsidiary force was made permanent and the battalions were increased to six; that by the treaty of 1800 the battalions were increased to eight and that by 1806 British Government resolved to station the troops at Hyderabad. The Treaty of 1829 named the Cantonment in memory of Sikindar Jah who died in 1829. By 1853 Treaty both British Government and Nizam confirmed all the earlier treaties and it was agreed that the services of the subsidiary force and the contingent were to be placed at the disposal of the British Government in time of war. During the year 1903 the Bolaram cantonment was abolished and merged with the Cantonment of Secunderabad with a definite assignment of land by the Nizam, but was occupied by the Army authorities free of cost. There was no assignment of land by the Nizam to the Army authorities. On 14-9-1908, 13 Mughalai villages, including Thokatta village were- demarcated. In 1912. Nizam's Minister conveyed the approval to retain the demarcated land by the Army authorities. During the year 1916 an additional land to the extent of Ac.2059-35 gts. was made available to the Army. On 10-10-1926 on W.P. Barton, Secretary to the Resident made a recommendation to maintain a register of rights and exclusive rules for the Secunderabad Cantonment mentioning therein that Nizam's government pledge themselves to provide free of cost land required for the Army purpose and the same would ordinarily be included in the delimited area. During the year 1928-29 Army pillars were included in the Survey of lndia Map. In the year 1930 based on the recommendations contained in the study report, the Government notified the Secunderabad and Aurangabad cantonment area, Land Administration Rules, 1930 and Rules 3 and 6 envisage maintaining of a General Land Register (for short "GLR") and division of delimited territory into classes A, B and C excluding the land held by the State, Sarf-Khas Paigah and private held lands. On 11-7- 1932 the Nizam's Government addressed a letter to the Secretary to the resident mentioning that no private rights exist in the land and that all land in the cantonment is either State, Sarf-i-Khas or Paigah. State lands are those belonging to Hyderabad/Nizam's Government and Paigah lands were those lands given by the Nizam to Nawab for maintaining Army to be useful to Nizam and Jageers and Inams are estates gifted by Nizam to his Nobles, courtiers and members of his family. During the year 1933 GLR was finalised by amending the Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 by notification dated 2-11-1932 and public notices were issued for all to bring title deeds relating to the properties, which they are holding. All lands where no title deeds were produced were classified as "B" under the management of Army Estate Officer leaving the column of holders right as blank and noted in the remarks column that authority for occupation is not known as a policy. In the year 1934 one Capt. CM. James, an officer of the Army lands and cantonment in his report dated 5-2-1934 stated that in addition to the delimited area approved by the Nizam in 1912 additional lands also be included in the revised boundary of the delimited area. The GLR and the Maps prepared by Caption James were approved by resident on 5-3-1934. Class- A lands are those held for Government purposes, Army or Civil; Class-B lands are occupied by the public for purposes subsidiary to cantonment administration and the vacant land in the delimited areas could be given on lease by the Cantonment authorities in furtherance of Army purpose. Class-C land belongs to cantonment authority or that was transferred under Section 108 of Cantonments Act, 1924. During the year 1937 Cantonment land Administration Rules, 1937 were promulgated by notification No.874, dated 20-11-1937. On 8-7-1950 Secunderabad was declared as a cantonment under Section 3(1) (2) of cantonment's Act, 1924 and on 2- 12-1950 and on 2-12-1950 under Rule 1(A) notified by SRO 305, all the rules in Part B were repealed. Thus the Secunderabad and Aurangabad Cantonment Land Administration Rules were repealed and Cantonment Land Administration Rules, 1937 were made applicable. On 4-8- 1954 in the meeting of the representatives of the State Government and the Union Defence Ministry and the Director of Army lands and Cantonments it was agreed that the lands which were in use or otherwise managed by the Army authorities should continue to vest in Central Government while those lands such as Sarf-I-Khas, Paigah etc., should continue to vest in the State. As a result of this Class-A land in occupation of the Army became the property of the Central Government, Class-B lands which were occupied for purposes subsidiary to cantonment administration or vacant lands available for such occupation were also brought within the delimited boundary and the exclusive management of these lands entrusted to the Army Estates Officer. It was agreed to finalise the new general Land Register on the line indicated in the minutes of the said meeting. In the year 1956 the GLR finalised in the form prescribed in Schedule-I in accordance with Rule 3 of the cantonment land administration Rules, 1937 framed under Section 280 of the Cantonment Act constituted the basis for the claim of the Ministry of Defence in respect of lands and buildings comprised in GLR Survey Nos.1 to 781. Class-A1, A-2, B-3 and B-4 lands are in the management of Defence Estates Officer and Class-C lands are under the control of Cantonment Executive Officer. All the lands in the cantonment including those occupied by the private individuals vested in the Nizam's Government, according to the learned Standing Counsel for the Central Government, stood transferred to the Central Government as a result of Article 295 (2) of the Constitution of India.”
41. The chronology of events leading to present day army establishments in SCB area narrated therein and the status of lands in issue commends acceptance and is the complete answer to the contention on status of these lands and the roads made therein.
42. In UNION OF INDIA Vs IBRAHIM UDDIN AND [17] ANOTHER , Supreme Court held that:
“83. The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act. It is settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Administration Rules is conclusive evidence of title. (Vide Chief Executive Officer v. Surendra Kumar Vakil {1999 (3) SCC 555 and Union of India v. Kamla Verma{ 2010(13)SCC 511 )”
43. In the facts of this case, it cannot be said that the nine (9) roads in issue in these cases do not form part of class A(1) lands.
44. When once these roads are held to be classified as forming part of Category “A” 1 lands, provision in Section 256 of Cantonment Act has no application. The Secunderabad Cantonment Board does not claim that these roads belong to them. Merely because, these roads are maintained by Secunderabad Cantonment Board, they do not loss the status of category “A” 1 lands.
45. It is one thing to say that roads belong to Army and Army can impose restrictions, but even assuming that the roads are civilian roads or the roads are being used by the civilians over several decades, army is not precluded from imposing restrictions on use of these roads for valid reasons.
4 6 Appropriate restrictions can be imposed by competent authority if the place is a work of defence, arsenal, Army establishment or station, mine, minefield, camp, belonging to, or occupied by or on behalf of the Government; place where any munitions of war etc. are being made, repaired, gotton or stored even if the land do not belong to Government, for security reasons. As per the provisions of the Official Secrets Act, 1923, place belong to Government includes a place occupied by any department of the government, whether the place is or is not actually vested in Government. Thus, even assuming that petitioners are right in contending that these roads were in existence much prior to coming into existence of Army establishments it cannot be said that for valid reasons the Army authorities cannot impose restrictions on use of these roads as all these roads are passing through above mentioned army establishments.
47. In TRADERS WELFARE ASSOCIATION Vs UNION OF [18] INDIA AND OTHERS , Delhi High Court held as under:
“However, if the larger area or a particular area is exclusively used by the armed forces, then question is to be considered as to what extent the armed forces can prohibit the general public from entering into certain areas. If other than the armed forces none is occupying that area, then it is difficult to understand as to how it can be said that it must be kept open for general public. It is submitted that since number of years these roads are open and there is no earthly reason for the armed forces to close the roads. Before us learned ASG appearing for the respondent has placed material which has been considered by the Director of Army Intelligence. We have perused the same. In view of this report and the incidents which have occurred in near past, we are satisfied that the impugned action is taken to safeguard the installations of the depots in larger public interest and the matter requires no interference. It is for the Station Commander to take appropriate action for taking all necessary measures. It may be for the purpose of security of the station or for the purpose of safeguarding the ordnance depots. It is stated that these roads are not completely closed but only after checking and inquiry, persons are allowed to move. The Gauhati High Court in the case of Jugal Baruah and etc Vs. Union of India and others reported in AIR 2003 Gauhati 37 had an occasion to consider the recommendations made by the Group of Ministers on reviewing the national security system. It relates to borders. The Court held that in public interest litigation, the Court should not interfere and held that the petitioner was not maintainable. Here the decision is taken by the Commander of the area and the highest officer. File indicates the necessity of such an action to avoid any untoward incident. After reading the file we are satisfied from the security point of view that no interference is called for in a matter like this…….”
48. The Division Bench of this Court in MRS. T.NIRMALA, held as under:
“ In such like matters when road is passing through defence area, petitioners cannot claim to pass through the defence area as a matter of right. Respondents are at liberty to withdraw the permission granted and put embargo on the free movement in the defence area by the petitioners or other residents of the locality, more particularly when other alternate routs are available. Petitioners have no vested rights and respondents are within their right to withdraw the permission. Writ Petition is misconceived and it is accordingly dismissed.”
49. The defence taken in that case on imposing restrictions and use of roads in MCEME was that security was strengthened in the light of the development on the borders of Pakistan and after series of incidents that had taken place in various parts of the country involving espionage activities undertaken by I.S.I. agents of Pakistan. The right to use those roads are denied as allowing Buses would jeopardize the security. The plea taken in this case is also similar to the plea taken in the said case. The security concerns are more grave now.
50. In PIL No.361 of 2012, Division Bench held as under:
“After considering the facts and circumstances of the case and after perusing the counter affidavit filed by the respondent authorities, it appears to us that since the land in question comes within the category of Class A(1) defence land and the whole area is managed and controlled by the Army authorities, it is the right of the Army authorities to use the said road and the same cannot be permitted to be used as a public thoroughfare. Hence, in our opinion, the petitioners or the general public have no right to use the same.”
51. In view of two Division Bench decisions of this Court and the decision of the Delhi High Court on imposing of similar restrictions, it cannot be said that the Army Authorities are not competent to impose restrictions on civilian movement where Army installations and men are stationed and for security reasons such restrictions are imminent. Overarching public interest prevails over individual freedom and inconvenience.
52. In VIKRAM THAKUR Vs UNION OF INDIA
[19]
, the roads on which restrictions were sought to be imposed by Army were opposed by the Cantonment Board and District Administration. The roads in that case were under the control of Cantonment Board. The said decision has no application to the facts of this case.
53. The decision of Karnataka High Court in DR.NITIN G.KHOT AND OTHERS turn on its own facts. The Army Authorities have allowed civilian establishments to come up within the cantonment area and blocking of the roads would deny them to reach their premises. The Division Bench of Karnataka High Court also held that except for the main roads the Court was not concerned with the other roads which are used and maintained by the Army for the purposes connected with or ancillary to the purposes specified in Rule 5(1)(i) of the Rules.
54. In the instant case, these roads are not the main roads; the main roads are not blocked; there are other connecting roads and therefore, the said judgment has no application to the facts of this case. Moreover, as noticed by the Karnataka High Court, there was no serious security threat at that point of time in Belgaum Town, but the intelligence inputs placed before this Court would demonstrate that the security threat is more grave and serious and it is necessary for the army to impose appropriate restrictions.
55. As contended by the learned Assistant Solicitor General, heavy traffic flow on these roads and as the roads are narrow, posed serious problem for the army in enforcing strict vigil on movements of people and vehicles and, therefore, such measures are necessary. The statistics filed on behalf of the army authorities as well as the traffic police would disclose heavy movement of vehicles on these roads. Admittedly, various Army establishments are located on these roads and there is round the clock movement of army personnel and their vehicles for various reasons. Some of these roads are also used for training purposes.
56. As per the intelligence inputs and concerns of safety and wellbeing of troops and their training it was but imperative for the General Officer Commanding, to enforce restrictions on movement of civilians on the roads in issue. In view of such serious security concerns expressed by the intelligence agencies, it cannot be said that the measures taken by the General Officer Commanding in Chief are arbitrary decisions, vitiating such exercise warranting interference by this court. It is in larger public interest that the army authorities have to take appropriate measures to safeguard the various army installations and personnel. Ultimately, the General Officer commanding is the authority who has to take decisions in the best interests of army. This court has no expertise to decide on when to impose restrictions and how to impose restrictions.
57. In the facts of this case, it cannot be said that the decision of the General Officer Commanding, was not valid and not bonafide, irrelevant and he has acted beyond his powers and competence warranting interference by this Court in exercise of powers of judicial review. The restrictions imposed by General Officer Commanding, are necessary for protecting competing public interest (Union of India v.
G. Ganayutham, (1997) 7 SCC 463).
58. The counsels for petitioners mainly concentrated on application of Cantonment Land Development Rules, 1930 to Secunderabad Cantonment. Assuming that 1930 Rules were applicable to Secunderabad Cantonment Board earlier, after the notification of Cantonment Act, 2006. 1937 Rules alone are in force and uniformly apply to all Cantonments to determine the status of various lands in Secunderabad Cantonment area and the said contention has no merit.
59. Petitioners are not directly affected by these regulations. As demonstrated by the learned Assistant Solicitor General, petitioners are living in far of residential colonies and there are other roads which connect to the main roads and to the various places in the twin cities of Hyderabad and Secunderabad. They are not directly affected by the restrictions imposed. Even the petitioners in PIL Nos.62 and 82 of 2014 are not directly affected by restrictions imposed. They live at far of places. It may be for convenience or because of better motor-ability of these roads, petitioners use these roads. The learned Assistant Solicitor General demonstrated that to use these roads by the petitioners, they have to travel far more distance than normally required and in fact take circuitry route and there are better alternative roads which also reduces commutation distance to connect the main center of the city. Therefore, the contention of the learned Assistant Solicitor General that the petitioners herein are not the persons who are directly affected by the restrictions imposed by the Army, cannot be brushed aside.
60. Thus, the General Officer-Commanding, Andhra sub area is competent to impose restriction on civilian movement in 1) Entrancement Road: from S.P.road/East Marredpally to Allahabad gate; 2) Wellington Road : from Secunderabad club to Allahabad gate;
3) Ordinance Road: from Safilguda junction towards safilguda railway crossing; 4) Gough Road: from Kendriya Vidyalaya crossing to East /West Marredpally;
5) Mornington Road: from Tirumulgiri Hanuman temple to Gough road of AOC centre 6) Valerian Grammer School to Golf Course; 7) Trinity Church road 8) Eagle Chowk to RSI to Lal Bazar road and 9) Ammuguda junction to Eagle Chowk within Secunderabad Cantonment area.
61. The principal grievance against imposing restrictions on 9 roads in issue in these cases is there are no proper alternative roads which civilians can use and if civilians are not allowed to use these roads it would cause greave hardship to them. This is a matter which requires immediate attention of civilian authorities. As the imposition of restrictions on above roads may cause added pressure on alternate roads which are narrow and not planned to take heavy traffic as contended by the Traffic Police and GHMC, all the concerned authorities shall take expeditious steps to improve the alternate roads so that ordinary people are not subjected to any inconvenience.
62. Conscious of the difficulties of commuters, the army authorities have imposed restrictions in a phased manner and such decision cannot be held as one made in an arbitrary manner. Subject to security concerns and training schedules, it is for the General Officer Commanding, to allow civilian traffic on the subject roads till alternative road network is developed. It is necessary for the civic administration to rise to the occasion and take immediate urgent measures so that the civilians are not put to inconvenience and hardship in commuting by using alternative roads, that are available. The GHMC and the Hyderabad District Collector shall file a report to this Court on the steps taken in this regard within two months from the date of receipt of copy of the judgment.
63. For the aforesaid reasons, the Writ Petitions and Public Interest Litigations fail and the same are hereby dismissed. No costs. Sequel to the same, the miscellaneous petitions stand dismissed.
P.NAVEEN RAO,J DATE: 26.9.2014 TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO PIL Nos. 62 and 82 OF 2014, W.P.Nos. 5772, 5782 and 11321 of 2014 Date: .2014
[1] 2003 (3) ALD 150 (DB)
[2] (2000) 7 SCC 425
[3] (1989) 4 SCC 155
[4] 2002 (5) ALD 532 (DB)
[5] AIR 1935 Lahore 589
[6] (AIR 1980 Bombay 9)
[7] 2011(6) ALD 355
[8] 2011 (6) ALT 356
[9] AIR 2008 SC (SUPP) 1788
[10] 1993 (1) APLJ 63 (HC)
[11] AIR 2006 SC 2840
[12] (2004) 2 SCC 510
[13] (1996)3 SCC 615
[14] 2010 (6) ALT 648
[15] 2005 (2) ALT 537 (DB)
[16] AIR 1998 KANT 300
[17] (2012) 8 SCC 148
[18] CW 3683/03 and CM 6365/03 Delhi High Court
[19] WP 20615 OF 2009 P & H High Court