Karnataka High Court
Neeta W/O Santosh Shirgaonkar vs Col Shankar Prashar on 20 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:4039
WP No. 107847 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 107847 OF 2023 (GM-RES)
BETWEEN:
1. NEETA W/O. SANTOSH SHIRGAONKAR,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O: #18/2 B, SAINIK NAGAR,
LAXMITEK, BELAGAVI-590001.
2. NIKITA W/O. SHANKAR METRI,
AGE: 31 YEARS, OCC: SERVICE,
R/O: #182/2/B, LAXMITEK, CAMP,
SAINIK NAGAR, BELAGAVI-590001.
3. NIKHIL S/O. KIRAN PATIL,
AGE: 28 YEARS, OCC: BUSINESS,
R/O: #22, PLOT NO.18/28,
LAXMITEK, SAINIK NAGAR,
BELAGAVI-590001.
...PETITIONERS
(BY SRI. RAVIRAJ C. PATIL,
SRI. SHRIPRASAD J. JOSHI &
SMT. VIDYASHREE I. SULDHAL, ADVOCATES)
GIRIJA A
BYAHATTI AND:
Digitally
signed by 1. COL. SHANKAR PRASHAR,
GIRIJA A
BYAHATTI ADM. COMMANDER,
M.L.I.R.C., STATION HEAD QUARTERS,
BELAGAUM CANTONMENT,
LAXMITEK, BELAGAVI-590001.
2. STATION COMMANDANT,
BELGAUM CANTONMENT,
BELAGAVI-590001.
3. THE PRESIDENT,
CANTONMENT BOARD,
BELAGAVI-590001.
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NC: 2024:KHC-D:4039
WP No. 107847 of 2023
4. GENERAL OFFICER COMMANDING IN CHIEF,
SOUTHERN COMMAND, M.L.I.R.C.,
HEAD QUARTERS, KOREGAON PARK,
PUNE, MAHARASHTRA-411001.
5. DEPUTY COMMISSIONER,
D.C. COMPOUND,
BELAGAVI-590001.
6. UNION OF INDIA,
BY ITS DEFENCE SECRETARY,
MINISTRY OF DEFENCE,
NEW DELHI-110001.
...RESPONDENTS
(BY SRI. ARAVIND KAMATH, ADDITIONAL SOLICITOR GENERAL FOR
SRI. SANJAY S. KATAGERI, ADV. FOR R1, R2, R4 & R6;
SRI. K.S. PATIL & A.S. SOMANNAVAR, ADV. FOR R3;
SRI. JAGADISH PATIL, ADV. FOR R7)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS AND DIRECT THE RESPONDENT NO.1 AND OTHER
CONCERNED RESPONDENTS TO OPEN THE LOCK PUT BY THE
RESPONDENT NO.01 ON THE PUBLIC ROAD AT LAXMI TEK
FORTHWITH; ISSUE A WRIT OF MANDAMUS OR ANY OTHER WRIT
AND DIRECT THE RESPONDENTS NOT TO RESTRICT MOVEMENT OF
THE PETITIONERS OR ANY OTHER CITIZEN/RESIDENT ON THE
PUBLIC ROAD ON WHICH THE RESPONDENT NO.1 HAS NOW
RESTRICTED THE MOVEMENT.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 13.02.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 107847 of 2023
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. To issue a Writ of Mandamus and direct the Respondent No.1 and other concerned Respondents to open the lock put by the Respondent No. 01 on the public road at Laxmi tek forthwit.
b. Issue a Writ of mandamus or any other Writ and direct the Respondents not to restrict movement of the petitioners or any other citizen/resident on the public road on which the Respondent No.1 has now restricted the movement.
c. To grant such other and further reliefs/s as this Hon'ble Court deems fit and proper under the circumstances of this petition, in the interest of justice and equity.
2. The petitioners claim to be the residents of Sainik Nagar, Laxmitek, Belagavi, adjacent to the residential quarters of Maratha Light Infantry Regimental Centre (M.L.I.R.C.) Belagavi. They claim to be since decades utilizing the road that connects the road through the residential quarters to many roads of the city which comes under the C.D.P. of the Belagavi City Corporation and that it is the only road which has the direct approach towards the city, -4- NC: 2024:KHC-D:4039 WP No. 107847 of 2023 Schools, Hospitals etc. The other roads add an additional 4-5 kms to reach the said destination from the residence of the petitioners. Furthermore, those roads are not accessible to four wheelers or big vehicles.
3. A compound wall separated the residential area of the petitioners with the residential quarters of M.L.I.R.C. Though there were gates in existence, the said gates had been kept open for the petitioners and anybody else to access the road. All of a sudden on 14.11.2023, respondent No.1 is alleged to have closed the gates and locked them blocking the access to the main roads and CDP roads. The residents like the petitioners who were making use of the said roads are now prevented from using the said road, which was being used to go to their schools. It is aggrieved by the same, the petitioners are before this Court seeking for the aforesaid reliefs. -5-
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4. Sri. Shriprasad J. Joshi, learned counsel for the petitioners would submit that;
4.1. Respondent No.1 has no authority to close the said road, which has been used for decades. His action is arbitrary and a misuse of the powers and authority vested with him, impinging the fundamental rights of the petitioners enshrined in Article 19(1)(b) of the Constitution of India, which restricts public movements on the roads possessed by the Cantonment Board. He contends that the said road is neither owned nor it has been constructed by the army, but it is the Belagavi City Corporation.
4.2. He submits that the road being in use by the general public for last 80-100 years, the respondents have no authority or right to close the public road and curtail the fundamental rights of the petitioners.
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 4.3. The land in question is not the one which is classified as Class 'A' land nor is it reserved for any specific military purposes. It being only a road, the general public are required to be allowed to use the said road.
4.4. In this regard he relies upon the decision of the Division Bench of this Court in the case of Dr.Nitin G. Khot and Others Vs. Station Commandant, Belgaum, ILR 1998 KAR 2194, more particularly paragraphs 2,6,7,10, 12 and 15, which are reproduced hereunder for easy reference:
2. Such a golden right enshrined in Article 19(1)(d) of the Constitution was alleged to have been violated by the respondent Army Authorities in the City of Belgaum, a peaceful and historic city located in the North-West of Karnataka. It is alleged that the Army Authorities have completely closed 16 roads in the city resulting in not only the inconvenience to the residents of the city but also the population living around the city who have been illegally prevented from using the roads. The 16 roads regarding which the writ petition was filed are:-7-
NC: 2024:KHC-D:4039 WP No. 107847 of 2023
1.Nagzari Road/ Albert Ekka Road/ Pandurang Salunke Marg.
2. Laxmi Mandir Road.
3. Esedar Road from Maj. Ramaswamy Avenue to Thimmayya Road.
4. Parade Road/Burj Road.
5. Rajendra Singhji Road.
6. Arsenal Road/Hoshiar Singh Road.
7. Frere Road.
8. Race Course Road/Point Road.
9. Ramghat Road.
10. Namdev Jadhav Road.
11. Thimmayya Road.
12. M.H. Road/K.V. Road.
13.Havlock Road/O.P. Malhotra Road.
14. Gymkhana Road.
15. Nolhan Marg.
16. Hilli Road.
6. It has been conceded on behalf of the respondents before us that the roads, the subject-matter of dispute, were governed by the Cantonment Rules. Rule 4 of the aforesaid rules refers to the classification of land in a Cantonment area. It provides:
"Classification of land.-- For the purpose of the General Land Register prescribed by Rule 3.--
(a) land in the cantonment which is vested in the crown shall be divided by the Central Government, or such other authority as the Central Government, may empower in this behalf, into two classes, namely.--
(i) Class 'A' land which is required or reserved for specific military purposes;
and
(ii) Class 'B' land which is not so required, or reserved, but which is retained in the cantonment for the effective discharge of -8- NC: 2024:KHC-D:4039 WP No. 107847 of 2023 the duties of the Central Government in respect of military administration; and
(b) land which is vested in the Board under Section 108 of the Act shall be called Class 'C' land.
(i) Land in cantonments must fall into one or other of three main categories, namely.-
1. Land which "is vested with Central Government (Classes 'A' and 'B';)
2. Land which "is vested in the Cantonment Board" (Class 'C';)
3. Land which falls into neither of the first two categories.
(ii) Land in category (1) may be either.-
(a) Class A(1) land, that is land in the active occupation of the Army.
(b) Class A(2) land, that is land which for specific military reasons must be kept vacant and must not be built over.
(c) Class 'B' land, that is land which, though not actively occupied by the Army nor reserved against building, yet must be retained in the cantonment is primarily a place of residence for troops and it is the duty of the Government of India, in the interests of the troops and of the civil population which is essential to the welfare of the troops, both to provide them with amenities such as postal, telegraphic and railway communications, rest houses, bungalows, shops, places of amusement, open spaces, agricultural produce and so forth; and also to keep in their hands a sufficient area to meet all possible future requirements that may arise in the course of the efficient -9- NC: 2024:KHC-D:4039 WP No. 107847 of 2023 discharge of their duties in respect of Army administration.
(iii) Land in category (2) is land which in the words of the Act, is required for "local public purposes" of a municipal nature, such as streets, markets, hospital, rubbish depots and so forth.
(iv) Land in category (3) is private land over which neither the Government nor the Cantonment Board posses any proprietary rights.
Rule 5 provides:
"5. Class 'A' land.-- Class 'A' land shall be divided by the Central Government, or such authority as they may empower in this behalf, into the following sub- classes, namely:
(i) Class A(1) land which is actually used or occupied by the Military Authorities, for the purposes of fortifications, barracks, stores, arsenals, aerodromes, bungalows for Military Officers which are the property of Government, parade grounds, military recreation grounds, rifle rangers, 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 Military Authorities".
Similarly Rule 9 deals with the management of Class A(1) land and provides that except for such areas or class of areas as may from time to time be declared by the Central Government to be under the immediate management of the Military Authorities themselves shall be entrusted to the Military Estate Officer. Rule 13 provides that the Military Estate Officer shall maintain plans and
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 schedules of lands in Class Ad) and A(2) lands for each cantonment. Rule 13(3)(i)(d) provides that where roads, over which the public have a right of way, traverse a holding, such roads should be excluded from the holding, even if they are military roads. Rule 14 provides special Rules for Class 'A' lands. According to this rule the administrative control of Class 'A' land including the detection and prevention of encroachments thereon, shall vest in the Military Authorities for the time being in occupation of the land and the administrative control of Class A(2) land vests in the Central Government. It further provides:
"The control of Class 'A' land mentioned in sub-rule (1) of this rule is to be distinguished from the management referred to in Rule 9. The intention is that Class 'A' lands shall be entirely under military as distinct from cantonment and civil control, but subject to this distinction, the actual management of certain Class A(1) lands is entrusted to the Military Authorities themselves under sub-rule (1) of Rule 9, while the remaining areas of Class A(l) land and all Class A(2) lands are entrusted to the management of the Military Estates Officer.
Unless and until the Military Authorities raise the question of relinquishing any lands in Class A(1) which are under their immediate management, the Military Estate Officers have no functions to perform with regard to such lands except to maintain a proper record of them as laid down in Rules 3 and 13".
7. To resist the claim of the appellants it has been argued on behalf of the respondents that they have not closed any roads but have
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 only enclosed their campus area, meaning thereby that the members of the public have been disallowed to use the roads within the campus. It is further submitted that the roads are not cantonment roads, but private roads formed and maintained by the Military Authorities for their use over which the appellants or any other person have no right. It is contended that the roads in question coming within A(1) land were the property of the Army Authorities regarding which the respondents had absolute right to deal in the manner they like. It is further contended that the appellants have no right under Article 19(1)(d) of the Constitution to maintain the present petition. It is apprehended that if such a right is conceded, a person may claim right in sensitive defence establishments resulting threat to the nation's security. The respondents further contend that the Military Authorities are entitled to protect their private property just as a private owner can. The pleas raised by the appellants are termed to be based upon disputed questions of fact which could not be adjudicated by this Court in exercise of writ jurisdiction.
10. As the land has been held to be the property of the Central Government, the respondents were under the legal obligation to justify their action of putting the restrictions, particularly when it has been conceded before us that the aforesaid lands had for years been used by the citizens of Belgaum and adjoining areas. The respondents have not referred to any authority of law or specific order of the Central Government putting such restrictions resulting in curtailment of the right of freedom of movement enshrined by Article 19(1)(d) of the Constitution. Restrictions contemplated under Article 19(6) of the Constitution are such restrictions which are imposed by any law or in exercise of the powers vested in an authority under a valid law. Admittedly, the impugned restrictions
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 have not been imposed by any statutory provision or under the authority of a Statute. Such restrictions, therefore, cannot be termed to be reasonable restrictions within the meaning of clause (6) of Article 19 of the Constitution.
12. Assuming but not conceding that the lands belonged to the Army and that they could deal with it in the manner they like under the rules, we are of the opinion that such a submission cannot be made the basis for rejection of the claim of the appellants. Class A(1) lands are such lands which are in the active occupation of the Army. The public roads cannot be termed to be in active occupation of the Army. Under Rule 5, Class 'A' land is such land which is actually used or occupied by the Military Authorities for the purposes of fortification, barracks, stores, arsenals, aerodromes, bungalows for Military Officers which are the property of Government, parade grounds, military recreation grounds, rifle rangers, 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. Admittedly, the lands used for the purposes of roads are not such lands which are used for any of the purposes referred to herein above. The land used for the purposes of roads, therefore, cannot be termed to be Class 'A' land, authorising the Army Authorities to make regulations regarding its user. Rule 13(3)(i)(d) also provides that where roads, over which the public have a right of way, traverse a holding, such roads should be excluded from the holding, even if they are military roads. In presence of Rules 5 and 13 the respondent authorities cannot claim the exclusive right of manning, managing and regulating the control of the roads allegedly belonging to them. Sub-rule (3) of Rule 14 clearly and unambiguously provides that lands in Class A(1) shall not be
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 used or occupied for any purpose other than those stated in sub-rule (1)(i) of Rule 5 without the previous sanction of the Central Government or such Authority as they may appoint in this behalf. Temporary use of such lands can be permitted by the authorities for storage of materials by contractors for the purposes of carrying out Government work. Admittedly the roads in dispute are not being used for the purposes specified in Rule 5(1)(i) of the Rules.
15. During the pendency of this writ appeal, interim stay was granted by the Court on 12- 8-1997. The aforesaid stay though claimed to have been implemented by the Army Authorities has not in any way adversely affected the security of the forces living in the cantonment areas. It may be specifically pointed out that except for the main roads, this Court is not concerned with 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. In the absence of legislative authorisation of putting restrictions, the respondents have apparently acted without jurisdiction. Despite our directions no specific order regarding imposition of the restrictions was produced.
4.5. By relying on the above judgment, he submits that there is no declaration by the Central Government entrusting the road to the Military Estate Officer. Therefore the Military Estate Officer would not have any jurisdiction over the concerned Road.
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 4.6. The said road had been used by citizens of Belagavi and adjoining areas. The restriction now sought to be imposed is by way of an executive order of the Station Commandant and not by any legislative enactment or the like and as such, the fundamental right under Article 19(1)(d) of the Constitution of India cannot be restricted by such an executive act. 4.7. The road having been used by the general public, more so the children to go to schools etc., such usage over a long period of time has nullified any claim on the part of Military Authorities and therefore, the said use cannot be restricted by way of an executive order. 4.8. The land of the road on which it is situated, is not used for any sensitive military activities. Till now the usage of the road has not caused any trouble and therefore, it is contended that further use by students to use the said road to
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 go to their schools and the use of the said road by residents of the area will not cause any harm or injury to the Military Authorities. 4.9. On these grounds he submits that the interest of citizens would have to be protected by permitting the citizens to continue to make use of the road which they had been using for a long period of time and the reliefs sought are required to be granted.
5. Sri. Aravind Kamath, learned Additional Solicitor General of India, would submit that; 5.1. The land in question has been classified as Class A-1 land under the Cantonment Land Administration Rules, 2021 and the same is not a 'public place' within the definition of Cantonment Act, 2006. The petition itself is in the nature of Public Interest Litigation and not
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 a private Interest Litigation. As such the present petition is not maintainable. 5.2. The classification as Class A-1 land would indicate that the said road is reserved specifically for military purposes. It is only Class 'C' land which is vested with the Cantonment Board. Class ʼAʼ land continues to be vested with the Station Commandant. The boundary compound wall has been constructed long ago in Survey No.183. There has been a gate in the place for a long period of time and the gate has been put up along with said boundary wall, which cannot be found fault with. The land having been classified as Class A-1 land, the land vests with the Ministry of Defence. The landlord is the Central Government managed by the Ministry of Defence.
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 5.3. The said road is not the only Road providing access to the petitioners to the city. There are various other roads which can be made use of by the residents. The road has been closed since in the said area Military Authorities are having Commando Training Area, Living Accommodation of Troops, Married Accommodation of Officers, Junior Commissioned Officers and other Ranks accommodation. The said road is not meant for public purpose.
5.4. The gate has been installed only to provide access to Military Engineer Service Personnel, since on the other side there is overhead tank which is also located in the Military Area and the gate is used only for such person and not for general public.
5.5. The land being classified as Class 'A' land, the general public cannot claim any right of
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 ingress and egress over the same. Representations submitted by the petitioners and certain others have been answered by the respondent No.1 on 28/04/2023.
5.6. There being other Municipal Corporation roads provided, it is for the general public to make use of such roads and not the roads within the Army campus. These documents have been purposely withheld by the petitioners and urgency sought to be made out by the petitioners, when there is none. 5.7. The petitioners have also sought to produce photographs to try and evoke sympathy when none lies. The neighbouring residents cannot be permitted to use the road in a sensitive location.
5.8. In terms of the Army Service Regulations (Defence Service Regulation) No.419, the
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 security and other custody of the army installation is vested with respondent No.1 Commandant, who has exercised such powers, which cannot be found fault with. 5.9. He relies upon the decision of the Gujarat High Court in the case of Hemant Rameshchandra Rupala Vs. Union of India and others in W.P.No.5767/2019 decided on 07.06.2022, more particularly para 8 thereof, which is reproduced hereunder for easy reference:
8. The present writ petition has been premised only on the letter dated 21.05.2018, which prescribes the SoP for closure of roads in cantonment. It refers to the "closed roads" in the cantonments. As held by the Division Bench, the land in question is a defence land of category A-1 and the said SoP does not remotely prescribe the procedure for the land of defence, which falls in the category of A-1 as per the Rules. Hence, the reliance placed by the petitioners on the communication dated 21.05.2018 is misconceived. In view of C/SCA/5767/2019 ORDER DATED:
07/06/2022 the aforesaid observations made by the Division Bench and the communications which are referred by the petitioners, more particularly, dated
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 02.05.2019 and 04.10.2018, which specifically indicated that there is a bullock cart road and a Nala road which is used by the public. It is not the road constructed by the cantonment, but is a cart road which is converted from a nallah (sewer). There is no constructed road, either by the defence or by the cantonment. It is pertinent to note that the status of the land in which the same falls has not been altered for all these years. It remains the same after passing of the judgment by the Division Bench. Thus, in facts and the circumstances of the case, neither the provision of section 258 of the Cantonment Act nor the SoP of letter dated 21.05.2018 will apply to the land belonging to category A-1 of the defence land. Hence, this Court is not inclined to grant any relief to the petitioners, as it is in the absolute domain of the respondent authorities to exercise their discretion with regard to opening or closing of the road which falls in the defence area. The reliance placed on the decision of Allahabad High Court in the case of Janardan Sharma and others (supra) by the learned advocate for the petitioners will not come to rescue to the present petitioner, in view of the observations made by the Division Bench, which have become final as the same has not been challenged by the residents of the society before the higher forum".
5.10. The judgment of the Division Bench of the Hon'ble Gujarat High Court in the very same matter in Writ Appeal No.4/2024 dated 04.01.2024, more particularly paras 4 and 5
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 thereof, which are reproduced hereunder for easy reference:
4. Having noted all the above, we have gone through the Rules of 1937 placed by Mr. Divyesh Sejpal, the learned counsel appearing for the respondent No.2. A perusal of the said Rules of 1937 indicate that they are framed in exercise of the powers conferred by Section 280 of the Cantonments Act, 1924 in the matter of administration of the land in the cantonment area. Rule-3 provides for the maintenance of A General Land Register. Rule-4 further provides for classification of land for the purposes of the General Land Register prescribed by Rule-3.
Clause (a) of Rule-4 states that the land in the cantonment which is vested in the Government shall be divided by the Central Government, or such other authority as the Central Government may empower in this behalf, into two classes namely, (i) Class "A" land which is required or reserved for specific military purposes; and (ii) Class "B" land which is not so required, or reserved, but which is retained in the cantonment for the effective discharge of the duties of the Central Government in respect of military administration. Clause (b) of Rule-4 states that the land which is vested in the Board under Section 108 of the Act shall be called class "C" land. Rule-5 provides for further division of the land into two sub-classes namely, Class "A" (1) and Class "A" (2). Clause (i) of Rule-5 classifies the land which is actually used or occupied by the Military Authorities, for the purposes of fortifications, barracks stores, arsenals aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges, grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of Regulations
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 for the Army in India and other official requirements of the Military Authorities; whereas Class "A" (2) land is which is not actually used or occupied by the Military Authorities, but to the use or occupation of which for any other purpose, except temporarily, there exist specific military objections. Rule-9 provides for management of Class "A" (1) land and states that the management of Class "A" (1) land except for such areas or classes of areas as may from time to time be declared by the Central Government to be under the immediate management of the Military Authorities themselves, shall be entrusted to the Military Estates Officer whereas management of Class "C" land vest in the Board under Section 108 of the Act. From the reading of the above Rules, it is more than evident that Rule-14 of the Rules of 1937 further provides for the administrative control of Class "A"(1) land and states that the administration control including the detection and prevention of encroachments thereon shall vest in the Military Authorities for the time being in occupation of the land. The Military Estate Officer is mandated to conduct his management of Class "A" (1) land which includes the development of the resources of the land, the disposal of usufruct and the planting and maintenance of trees, etc. Clause (3) of Rule-14 further states that the land in Class "A"(1) shall not be used or occupied for any purpose other than those stated in sub-rule (i) of Rule 5 without the previous sanction of the Central Government or such authority as they may appoint in this behalf.
5. By reading all the Rules of 1937, it is more than evident that the Cantonment Board has no control over the management or supervision of the land falling in category Class "A"(1), which is actually used or occupied by the Military Authorities for the
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 purposes prescribed in Clause (i) of Rule-5 of the Rules of 1937.
5.11. By relying on the above, he submits that Class A-1 land can be used or occupied by Military Authorities only. It is not the Cantonment Board which would have supervisory power relating to the same, but the Military Authorities prescribed in clause (i) of Rule 5 of the Cantonment Land Administration Rules, 1937 (now 2021 Rules) and it is only the Military Authorities, who can decide which area is sensitive or not.
5.12. Insofar as the decision of Division Bench of these Court in Dr.Nitin G. Khot (supra), he submits that the same is not applicable to the present case, since the road in question does not link with any main roads of the Belagavi City. The said judgment though was also dealing with the very same cantonment area, it is only the specific roads stated therein,
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 which have been declared to be public roads. The Division Bench has consciously not adverted to any other road, thus, the petitioners cannot claim that the decision in Dr.Nitin G. Khot (supra) case would apply to the present road.
6. Heard Sri.Shivaprasad J. Joshi, learned counsel for the petitioners, Sri. Aravind Kamath, learned Additional Solicitor General for respondents No.1, 2, 4 and 6, Sri. K. S. Patil learned counsel for respondent No.3 and Sri. Jagadish Patil, learned counsel for Respondent No.7. Perused the papers.
7. It is not in dispute that there is a Belagavi cantonment area which has been established. It is also not in dispute that the layout in which the petitioners claim to be residing is not in the cantonment area, but it is besides and abutting the cantonment area.
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023
8. The claim of the petitioners is that, they were using the road going through their layout into the cantonment area, to access various facilities including Hospital, Schools etc., which has now been closed, causing inconvenience to the residents. The basis of the claim of the petitioners is Article 19(1)(d) of the Constitution of India and that the land is not classified as Class 'A' land and the road not being one which can be classified as Class 'A' land, the general public ought to be allowed to use the same.
9. What is required to be ascertained now is regarding classification of the land. Respondents have produced the extract from the General Land Register or otherwise called GLR, which indicates that the land in Survey No.183 measuring 38.500 Acres had been re- classified from A2 to A1 vide Govt. of India Ministry of Defence dated 10.10.74 and 18.11.1974 and placed under the Management of Ministry of Defence
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 (Q.M.G.) for the purpose of construction of accommodation for separated families of 100 JCOs The boundary of the land in survey No.183 is where the compound wall has been constructed and the road situated therein and a gate has been put up.
10. Survey No.78 which had been earlier classified as B-
4 was re-classified as A-1 vide Government of India Ministry of Defence letter dated 20.02.1978 and has been reserved for training purposes. This land is where it is claimed the Commando Training Centre has been established.
11. The neighboring land in Survey No.78-B is also stated to be re-classified from B-4 to A-1 for the purpose of construction of Accommodation for Separated Families of 128 OR and 20 NCSE, vide Government of India Ministry of Defence letter dated 10.10.1974 and 18.11.1974. The road is stated to proceed through this land and goes towards Commando Training Centre.
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12. A perusal of the photographs that have been produced would indicate that the petitioners' residential houses are situated outside the compound wall. A representation had been given by the petitioners on 13.03.2023 to respondent No.1, in the said representation, it has been categorically stated that the residential colony for army personnel has come up on both sides of the road leading to the colony of the petitioners and the solution offered by the petitioners is to build a compound wall on either side of the road to safeguard the army personnel and provide access to the petitioners to access the said road.
13. The said representation was rejected by the Station Staff Officer on 28.04.2023, stating that large number of complaints had been received by office of Station Staff Officer, wherein certain miscreants had disturbed the ladies residing in the residential quarters by knocking the doors and windows at night
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NC: 2024:KHC-D:4039 WP No. 107847 of 2023 and running away and that the residents of the colony regularly throw garbage filled polythene bags into the residential colony, some of the residents use the road for waking their pets which defecate in the residential area and the said pets have also many a times scared the residents, more particularly the children, the residents of the colony do not adhere to the traffic rules, are overspeeding and there is potential cause of risk/mishap causing risk to the army personnel residing in the area and indicated that the gates would open from 0500h to 2000 hrs for usage by the residents and will be closed thereafter, for security reasons. The said response reads as under:
150/4/G 28 April 2023
Smt. Neeta Shirgaonkar
House NO.182/2B
Laxmi Tek
Belgavi - 590 001
ARBITRARY AND UNAUTHORISED CLOSURE OF A ROAD IN BUDA SCHEME NO.41 BY ARMY PERSONNEL
1. Refer your letter dated 13 Mar 2023.
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2. It is intimated that the gate for which 24 hours access is being sought is on A-1 defence land. This access to your colony is through a residential family accommodation of the Army. A large number of complaints have been received by this office wherein some miscreants have come and disturbed ladies whose husband is away on duty by knocking on doors/windows at night and running away. The safety of our families is our primary concern especially when the service personnel is away on duty.
3. Further residents of your colony throw garbage filled polythene bags in our residential colony. Also come residents of your colony have been seen walking their pets in our residential colony. These pets defecate in our residential areas which is unhygienic. Also, the pets scare the children in the area.
4. Most residents of your colony do not adhere to traffic rules to include overspending, not wearing of helmets, etc while plying their conveyance inside the colony. Wards of defence personnel play inside our compound and overspeeding private vehicles are a potential cause of mishap/risk to lives.
5. Your colony has an access provided by the Municipal Corporation and the access from our side is not the main access. Issues pertaining to non- maintenance of the access road to your colony may please be raised with the concerned authorities.
6. The above aspects were explained to the group of people from your colony who met us at hour Headquarters.
7. Notwithstanding the above, the gates are open from 0500h to 2000hrs. Post 2000hrs the gates are closed due to security concerns.
8. For your information please.
(Atul Salukhe) Colonel State Staff Officer For Station Commander
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14. In view of the said reply of the Station Staff Officer, the only issue that remains for consideration is whether the Army Authorities have the right to close the road from 8:00 p.m. to 5:00 a.m.
15. The aspect of the land being classified as Class A-1 reserved for military proposes and being beyond the control of the Cantonment Board cannot also be disputed. Essentially, the said land would come within the purview of the Commandant of the Military Area once it is out of the jurisdiction of the Cantonment Board.
16. What the respondents have done is not the closure of the road completely for all times, but only closure from 8:00 p.m. to 5:00 a.m. This cannot in my considered opinion be said to be unreasonable or violation of the rights under Article 19(1)(d) of the Constitution of India, as sought to be made out by the learned counsel for the petitioners.
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17. The road being situate in the military area it is but required for anybody using the said road in a proper way and not to disturb the residents of that area. This requirement would not only be in respect of a road in a military area, but for usage of any public road.
18. Taking into consideration that there are houses which have been constructed for usage by separated families and spouses of persons who are serving in the front would be residing in these quarters. The Commandant has thought it fit to close the road from 8:00 p.m. to 5:00 p.m. which cannot be said to be unreasonable.
19. In that view of the matter, the commandant having the jurisdiction and authority to decide on the manner and methodology of usage of the land classified as Class A-1, which is evident from the GLR which has been produced, the action taken by him cannot be found fault with.
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20. As such I pass the following:
ORDER i. Writ petition is dismissed.
ii. The petitioners shall make use of the road from 5:00 a.m. to 8:00 p.m. in a manner which does not disturb the residents of military area of the separate family quarters and/or any activities being carried out in the said area.
Sd/-
JUDGE gab Ct-mck List No.: 1 Sl No.: 1