Union vs Umesh on 30 March, 2010

[Cites 17, Cited by 0]

Gujarat High Court

Union vs Umesh on 30 March, 2010

1. This group of Letters Patent Appeals arises out of an order passed by the learned Single Judge on 14-15/7/2011 in Special Civil Application No. 4980 to 5012 of 2011 and allied matters where-under the learned Single Judge issued certain directions by way of an interim relief pending the petitions. The interim relief which is given by the learned Single Judge can be quoted thus, "14. Therefore, this petitions required to be admitted. Hence, Rule. By way of interim relief, the respondent no.2 is directed to lift the barricades forthwith and it will be at liberty to put the required vigil and watch over the persons vehicles using the passages so as to take care of their apprehension. At the same time, if the respondent no. 2 is desire to place watch and its personnel, then, the staff should see to it that no undue hardship and consternation is created in the public. This order is passed in view of the fact that respondent no.2 has in no way justified in permitting its own road i.e. Tarapor Road, to be used by public at large and placing barricades in the land which is not A-1 land and which can be called as sensitive area. Learned AGP waives service of notice of Rule on behalf of respondent no.1, learned Assistant Solicitor General waives service of notice of Rule on behalf of respondent no.2 and Mr. Nanavati and Patel, learned advocate waives service of notice of Rule on behalf of respondent no.3 Ahmedabad Municipal Corporation. The respondent no.2 shall cooperate within its limit and statutory obligation with respondent no.3 in laying down the scheme and road. The moment there is a road available, then, this interim relief will come to an end in its own. Direct Service permitted.

15. At this stage, learned Assistant Solicitor General requests for suspension of this order for a period of one week. This Court is of the view that in light of the peculiar facts and circumstances as stated hereinabove and the hardships suffered by the petitioners, the direction to lift the barricades will be implemented only on and from 20.7.2011. This direction will become operational on 20.7.2011 and the barricade shall be removed by 20.07.2011, in the meantime, and till then only the status-quo as on date be maintained by respondent no.2 and by the concerned authorities."

2. The dispute relates to a piece of Cantonment Land which is sought to be used by the petitioners - respondents herein as a passage to their residence located in a society called Maruti Bungalows. Same piece of land is sought to be included in the Draft Town Planning Scheme by the Ahmedabad Municipal Corporation. The case of the private respondents herein is that they have been using this piece of land as a road to their home for many years and it was never objected to by the Army Authority when suddenly on 1.4.2011, the Army Authorities stopped passage of four wheelers initially and then for all private citizens. It was the case of the petitioners that no notice was given, no audience was given and suddenly the road was blocked by putting barricades.

3. On the other hand, the case of the Army Authorities in the cantonment area is that the land in question is of the ownership of the Army and is categorized as A-(1) Land. Passage by a private person was never permitted and it amounts to a tress-pass. On account of certain intelligence involving security, accessibility of cantonment area or exposure of cantonment area to private citizens was required to be curbed, therefore, they have put up barricades.

3.1 Considering the pendency of litigation, in light of the directions given by the Court residents of Maruti Bungalows and essential services like Ambulance, School Vehicles etc. were permitted to pass through the land after imposing certain restrictions like issuance of pass etc. The petitioners have their reservations about the implementation of these directions in their true spirit and have, on earlier occasions, made grievance that they are implemented not in the spirit but in a strict manner.

4. Learned Additional Solicitor General Ms. Indira Jaysingh appearing with learned Assistant Solicitor General Mr. P.S. Champaneri raised many contentions. Briefly stated, it was submitted that there are certain intelligence on security which cannot be placed on the record of the Court by way of an affidavit for security reasons. But it is submitted that the authorities in the Army are ready to show it to the Court. She submitted that the land in question is categorized as A-(1) which means 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 the Government, parade ground, 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 for the Army in India and other officials requirements of the Military Authorities. It was also submitted that no alteration in classification of the land which is vested in the Government or in the cantonment board is permissible except by the Central Government. She also submitted that for the purpose of change of its use or ownership also, it is the Central Government who is competent authority to take the decision.

4.1 It was also submitted that the learned Single Judge has erred in issuing directions in absence of any right in favour of the petitioners. It was also contended that the petitioners have access to their property through another alternative 12 meter road and military road known as Tarapor Road which is kept open by the Cantonment Authorities since 1976 and has never been closed. It was, therefore, contended that it is not the case that the petitioners will have no access to their home and shorter access is not their right.

4.2 It was contended that all these aspects have not been taken into consideration by the learned Single Judge and the order is passed mainly on basis of the inconvenience caused to the petitioners and on basis of the fact that there is nothing to show that the land in question is classified as A-(1) Land. In this context, it was submitted that the register would show that it is classified as A-(1) land and the Court could not have issued such directions. It was therefore urged that the appeals may be allowed and the interim relief granted to the petitioners may be vacated.

5. On the other hand, learned advocate Mr. Panchal for the petitioners contended that the petitioners have been using this piece of land as a road for egress and ingress to their home for a long time and when it suddenly came to be obstructed, the petitioners preferred these petitions. He has drawn our attention to the fact that there was nothing to show that the land in question was categorized as A-(1) land. He submitted that neither any notice nor hearing was given to the public before taking the action. Mr. Panchal submitted that the citizens are put to inconvenience because of the inaction on the part of the Corporation in implementing the Draft Town Planning Scheme on one hand and by the Army Authorities, on the other by not permitting the use of their property. He submitted that despite this Court's order, the Army authorities have adopted a stringent stand and even sick and ailing persons are not permitted passage through the land in question. Learned Advocate Mr. Panchal has relied on the decision of Delhi High Court, as reported in 16(1979) DLT 266 between PS Gill and Ors. and Union of India and others, decided on 12th October, 1978 besides a decision of Karnataka High Court in Dr.Nitin G.Khot and others v.Station Commandant, Belgaum and others, AIR 1998 Karnataka 300 and an unreported decision of Punjab & Haryana High Court at Chandigarh in CWP No. 20615 of 2009 (O&M) between Vikram Thakur and Union of India dated 30.3.2010.

5.1 Learned Advocate Mr. Panchal however had to factually concede that the land in question is of the ownership of the Army and the petitioners have no any right or title over the land in question.

6. Learned Senior Advocate Mr. Prashant G. Desai appears for the Ahmedabad Municipal Corporation with learned Advocate Mr. Dhaval Nanavati and Himanshu K. Patel. Learned Senior Advocate Mr. Desai submitted that this piece of land which is belonging to the Army has been included originally by the Ahmedabad Urban Development Authority in its Development Plan and subsequently by the Ahmedabad Municipal Corporation in its Draft Town Plan. It is submitted that the Draft Plan as it exists today is evolved after prolonged consultation and discussion with the Army Authority. The objection on the part of the Army Authority has been on the ground of security and they are ready to let go the land to be included in the Town Planning Scheme upon certain conditions to which the Corporation is agreeable. However, it is submitted that there is consensus ad-idem between the Corporation and the Army Authority since the Army Authority wanted certain action to be taken by the Corporation besides giving land of equal size contiguous to the Cantonment Area. To this, response came from the learned Assistant Solicitor General Mr. P.S. Champaneri that the offer made by the Corporation is an alternative offer that is, the Corporation may part with the land and comply with other conditions of construction of wall, under-pass etc. and upon examination of record, we find that the offer is not for land in lieu of the land and construction but it is either the land in lieu of the land or construction in lieu of the land. Learned Senior Advocate Mr. Prashant G. Desai has tried to impress upon us that the Municipal Corporation is legally competent to take possession of the land from the Army land in exercise of the powers under the Town Planning Act, particularly section 12, 17(3) and 48-A of the Town Planning Act. It was also submitted that the Army Authorities had never raised any objection about use of the land at the entry point near Taj Circle.

7. In rejoinder, learned Assistant Solicitor General Shri P.S.Champaneri has drawn our attention to entry-3 of list-1 serial-7 of the Constitution of India to indicate that the subject is purely a Union Subject and the State Government or the Local Authority will have no say on the issue. He has drawn our attention to Article 243(P) and 243(Q) of the Constitution of India to show that the cantonment board is not included, and, therefore, argument made by the learned Senior Advocate Mr. Desai that section 17(3) of the Town Planning Act, when it refers to any authority, it includes in its sweep the cantonment board as well, has no substance. Learned Asstt. Solicitor General Shri PS Champaneri has referred to section 10 of the Cantonments Act, 2006, so also, section 2 clause 14 of the Town Planning Act.

8. Special Civil Application No.9196 of 2011 to 9199 of 2011, Special Civil Application No. 9210 of 2011 with Special Civil Application No. 9778 of 2011 came to be filed during the pendency of the Letters Patent Appeals and since the subject matter was same, they have been clubbed together with the Letters Patent Appeals.

9. We have heard learned Advocate Mr. Panchal for the petitioners. According to him, petitions being Special Civil Application No. 9196 to 9199 of 2011 are preferred by the owners of the plots who are in the business of developing the land whereas Special Civil Application No. 9210 of 2011 is preferred by the owner who is an agriculturist. Similarly, Special Civil Application No. 9778 of 2011 is preferred by the petitioner who is represented through learned Advocate Shri Shital Patel.

10. Prayers made in all these petitions are similar to the prayers made in the earlier petitioners wherein order has been passed by the learned Single Judge and which is under consideration by this Court in these Letters Patent Appeals.

11. Learned Advocate Mr. Panchal submitted that the Army authorities have made allegations against these petitioners in the earlier petition where the petitioners were not party. Allegations are to the effect that the activities are against the interest of security of the nation and there is a nexus with terrorists, fidayin etc. Learned Advocate Mr. Panchal submitted further that in light of section 48-A of the Gujarat Town Planning Act, and fact that the draft of Town Planning Scheme has been approved, land in question no more remains the Army land list category A-(1) land. Learned Advocate Mr. Panchal has taken us through the affidavit filed by the Army authority in Letters Patent Appeal No. 1052 of 2011. In support of his submission, he has also drawn our attention to the photographs produced by the Army authority in Letters Patent Appeal No. 1053 of 2011 which relates to the site and construction of the petitioners.

12. Learned Assistant Solicitor General Mr. P.S. Champaneri has, on behalf of respondent No.2, submitted that certain specific averments are made in paragraph 9, 10,11 and 12 of the affidavit in reply filed in Special Civil Application No. 9196 of 2011 as sworn by Colonel Mr. Limbachia. He submitted that these allegations made in paragraph 12 have not been controverted either by the petitioners or by the Ahmedabad Municipal Corporation. He submitted that no notification delimiting the Army land has been issued and, therefore, it remains the Army land.

13. Learned Advocate Mr. Shital Patel has drawn our attention to the earlier Special Civil Application filed by the petitioner in Special Civil Application No. 9778 of 2011 bearing SCA No. 7915 of 1990 and an order passed on 15th January, 2008 on consensus where the Ahmedabad Municipal Corporation has agreed to implement the scheme. He submitted that the scheme is not yet implemented in its true spirit despite lapse of almost three years and the petitioner is still suffering same difficulty. He also adopted the arguments advanced by learned advocate Mr.Amit Panchal and submitted that the interim relief providing passage to the petitioners through the Army land may be granted.

14. Learned Senior Advocate Mr. Prashant Desai appearing with learned advocate Mr. Dhaval Nanavati for the Ahmedabad Municipal Corporation has submitted that even without going into the niceties of law at this stage, the Army authorities have been actively participating in the development plan and town plan and as per the requirement of the Army Regulations, development or town plan has been varied and during all this time, disputed piece of land has been shown as a part of the DP and TP Road and, therefore, the Army authority would be estopped from taking the stand that they have taken.

15. Learned Advocate Mr. Panchal in rejoinder submitted that the petitioners are citizens and they are seeking sympathetic consideration by both, the Corporation and the Army authority, of their right to enjoy their property and the petitioners are ready to abide by any condition that the respondent authority may impose.

16. We have taken into consideration the rival submissions. In the first instance, we may record that these appeals are arising out of an interim order passed by the learned Single Judge while the petitions are pending. During the pendency of these appeals, Special Civil Application No. 9196, 9197, 9198, 9199, 9210 and 9788 of 2011 came to be preferred by the respective petitioners and they have been clubbed with these appeals. We, therefore, admit these petitions by issuing rule. Respective learned advocates for the respondents therein waive service of notice of rule in those petitions.

17. Now, what is required to be considered by us is (1) whether the learned Single Judge was justified in granting interim relief in favour of private respondents in the Letters Patent Appeals? and (2)whether the petitioners who are before us for the first time are entitled to any interim relief?

18. To address these questions,we would be required to examine the submissions made made before us by the learned advocates for the parties on facts as well as on law.

19. At the outset, we may record that it is not in dispute that the land in question ad-measuring about about 3849 square meters which is shown in DP and TP Road is a part of the Army land and is in occupation of the Army.

19.1 It is also not in dispute that this land is shown to be a part of the road in Draft TPS No. 67 - Hansol. The map produced on the record depicting the petitioner's property as per the Town Planning Scheme would indicate that the TP Scheme has different road providing access to this land. It is a matter of controversy whether that road has been appropriately developed by the Corporation so as to make it pliable.

20. With the above factual relevant scenario, we would also like to add that none of the petitioners are claiming their right, title and interest over the disputed so many meters of land which is forming part of the Army land except the averment of there being no other access to their property and are enjoying a right of way to the property for many years.

21. Major argument that is canvassed on behalf of the petitioners as well as the Corporation is that the disputed piece of land is shown as forming part of the TP and DP Road and since a draft TP Scheme has been approved in light of the provisions contained in section 48A of the Town Planning Act,it is deemed to have vested in the Corporation.Therefore, it cannot be considered to be forming part of the Army land and it loses its nature of being the Army land. In this context, it would be appropriate to refer to section 48-A of the Town Planning Act which runs as under:

"48-A Vesting of land in appropriate authority.-

(1) Where a draft scheme has been sanctioned by the State Government under sub-section (2) of Section 48, (hereinafter in this section, referred to as "the sanctioned draft scheme"), all lands required by the appropriate authority for the purposes specified in clause

(c),(f),(g), or (h) of sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances.

(2) Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.

(3) The provisions of Section 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,-

(i) sanctioned draft scheme were a preliminary scheme, and

(ii) in sub-section (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-section (2) of Section 48" were substituted.]"

22. On the other hand, reliance is placed on section 4,5,9 and 10 of the Cantonments Act, 2006. Reliance was also placed on Entry No.3 of List-1 of Schedule 7 of the Constitution of India to show that this question falls in the Central List and the State Authorities or the Local Authorities cannot decide on this question. Our attention was also drawn to Article 243(P) and 243(Q) of the Constitution of India to contend that the cantonment is not included. It would therefore be appropriate to refer to Article 243(P). As per Sub clause (d) of Article 243(P) of the Constitution of India, 'Municipal Area' means the territorial area of a Municipality as is notified by the Governor. As per sub clause (e) of Article 243(P) of the Constitution of India, Municipality means an institution of self-government constituted under Article 243Q. Article 243Q provides for constitution of Nagar Panchayat, Municipal Council and Municipal Corporation. Differently put, it was contended that it is not contemplating cantonment area. Our attention was also drawn to section 2 clause (xiv) of the Town Planning Act,providing definition of local authority and it was contended that this also does not include the cantonment board.

23. On behalf of the Corporation, heavy reliance was placed on section 12 and 17(3)of the Town Planning Act. Section 12 indicates contents of draft development plan which includes transport and communication such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development and section 17(3) of the Town Planning Act provides for a final development plan which has come into force shall, subject to the provisions of this Act, be binding on the Area Development Authority concerned and on all other authorities situated in the area of the development plan. It was therefore contended that the development plan would be binding on all other authorities which would also include cantonment board and the Army authorities.

24. We shall firstly deal with the question whether the land in question is Army land or not and whether it falls in the Category A-(1) or not. In this context, as recorded by us earlier, it is not in dispute that as on today, land in question is Army land. Reliance is placed on section 48A of the Town Planning Act to show that it would vest absolutely in the appropriate Government free from all encumbrances once the Draft Scheme has been sanctioned by the State Government. At this interim stage, this will not change the complexion of the issue for the reason that the disputed property is still not de-notified to be Army property and possession of it is also not taken by the Ahmedabad Municipal Corporation as implementing authority of the TP Scheme.

24.1 So far as the category of the land in question is concerned, classification of category is made in Cantonment Land Administration Rules 1937. In Chapter II Clause 5, A-1 land is defined thus, class "A"(1) land means 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 the Government, parade ground, 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 for the Army in India and other officials requirements of the Military Authorities. It has been vehemently contended that there is nothing on record to show that this disputed land is falling in category A-(1). Technically it may be so but material on record would certainly indicate that the land in question falls in category A-1 . Undisputedly, the land in question is part of the cantonment area which was formerly used for the purposes of fortifications, barracks stores,arsenals etc. near to which Army officers residential quarters are constructed. Therefore,this land cana be said to have been used for the purposes of bungalows of military officers stricto sensu they are not bungalows but they are quarters. Therefore, at this prima facie stage, we find that the land in question is Army land of category A-1 in actual possession of the Army authority.

25. During the course of hearing, two sealed envelopes were handed over to this Court by the learned Assistant Solicitor General Shri PS Champaneri to indicate the factors relating to the security etc. based on intelligence. We had opened those envelopes in open court and examined contents thereof and returned those envelopes to the learned Assistant Solicitor General Shri Champaneri in the Court itself. One of the envelope contained document relating to certain intelligence received concerning security of the nation and Army in the cantonment. We may record here that the corps of the Army, which is in the cantonment, is a specialized force of its kind in whole of the country. We refrain from making any further observation but we find that there is genuine security concern so far as the cantonment area is concerned. We may now refer to certain averments made in the affidavit by the Army Official in SCA No.9196 of 2011 wherein following averments are made in para 9,10, 11 and 12 from page 35:

"9. At the outset, I further state and submit that the petitioner who is sought to be in process of constructing the complex/ apartments has come before this Hon'ble Court, claiming the right to access of the space for ingress and egress to its site of construction and/or the land situated in the Draft Town Planning Scheme through class A-1 defence land of Army in the form and by way of various prayers made in para no.10 of the petition, on the premises that the petitioner is engaged in business of construction activity and is presently putting up the construction site after investing huge amounts plus infrastructural cost and such construction, however, has not placed on record the sanctioned plans, permission or the commencement certificate/ permission and says that construction would be enabling the citizens to purchase the same for housing purposes and that by barricading the steps by the Army authorities their right of way and public access of road for egress and ingress to the petitioner's construction site is obstructed, as contended in paragraph no.4 of the petition.

10. In view of the facts pleaded by the petitioner, I submit that the petition under Article 226 of the Constitution of India is not maintainable at facts as well as at law, inasmuch as it involves the disputed questions of facts as to the existence of road at the place in question. I state and submit that there is no road as claimed through class A-1 Defence land of the Army Cantonment, Ahmedabad. It is also not true and correct that the alleged space is the only ingress and egress available to the petitioner to reach the petitioner's construction site. As a matter of fact, the petitioner claims the right of way through A-1 class defence Army land by way of a prayer made in para 10(B) of the petition, seeking a direction against answering respondent to permit the petitioner, his staff, agents, servants etc. to use the existing road (as it the space in question is a road) till an alternative road is made available by the respondent nos. 1 and 3, for the use of general public and the petitioner as required under Town Planning Scheme No.67 (Hansol). The A-1 class defence land of Ahmedabad Cantonment is not forming part of Town Planning Scheme No.67 (Hansol). In the aforesaid claims of the petitioner, it is submitted as follows:-

11. I state that the petitioner falsely claims that the class A-1 Defence Land in question was being used by all concerned for the past 35 years. It is pertinent to mention that Maruti Bungalows scheme has come upon in 2006, whereas the petitioner's residential scheme is still under construction. The applicant thus has no right in making such a claim. The petitioner has claimed the existence of 'road' in his SCA. May I request the Hon'ble Court to direct the petitioner to provide any authenticated map/ proof depicting any kind of passage/ footpath/ road through the class A-1 defence land of Army Cantonment.

On the other hand the Army authorities have placed on record numerous maps dating back to 1922 which depict no such roads. The only road ever depicted in the maps are 'proposed road' of TP Scheme No.67 (Hansol) which is yet to be finalized pending approval of MoD and Union Cabinet to authorize Army to hand over the parcel of class A-1 defence land in question to the State Government/ Ahmedabad Municipal Corporation. The petitioner also claims that the Army authorities have not been able to provide that the parcel of land in question is defence land. May I quote the Ahmedabad Municipal Corporation's proposal which has been forwarded to higher Army authorities:-

"On dated 18.05.2003, the Government of Gujarat has sanctioned the Revised Development Plan for Ahmedabad Urban Development Area (including Ahmedabad Municipal Corporation area). In the said revised development plan 36.00 mtrs. wide road passing through Defence land area known as "Firing Range" was proposed to provide connectivity of the road network of the City. (Some part of the said road is passing through the land owned by Defence Authority. The petitioner's claim is rendered baseless as the Ahmedabad Municipal Corporation has already accepted the fact that the parcel of land in question is indeed defence land. The questions of classification of the said land as A1 defence land has already been answered vide LPA No. 1052 of 2011. It is, therefore, reiterated that the petitioner is indeed trying to mislead this Hon'ble Court by producing contradictory statements in a bid of convince this Hon'ble Court by way of causing confusion."

In view of the aforesaid facts and circumstances, I state and submit that the allegations, contentions and submissions of the petitioner to the effect that there is a road is not true and I deny the same. The facts alleged and contended by the petitioner in paragraph no.4 are, therefore, denied. I say and submit that the petition raises disputed questions of facts. Therefore, the petition under Article 226 of the Constitution of India is not maintainable and the same deserves to be dismissed.

12. I further state and submit that it is once again reiterated that other small roads of 12 mtrs. etc. as per Ahmedabad Municipal Corporation's Draft T.P. Scheme are being used by residents and builders freely. Also storm water drainage line has already been laid by Ahmedabad Municipal Corporation along these roads. Objections have been raised for this proposed 30 mtrs. road which is running along the boundary of the Army/ Defence land and installations. Precisely due to this scrutiny aspect, the State Government has deleted that portion of highway and Bridge as the notification stands today. During the meeting between the Local Military Authority and the Commissioner, Ahmedabad Municipal Corporation on 08.08.2011, the Commissioner of Ahmedabad Municipal Corporation has agreed to Army's security concerns."

26. These assertions made in this affidavit have remained uncontroverted by the Corporation as well as the petitioners.

26.1 There is specific averment that the land is Class A-1 land of the Army. It is also denied that the disputed land is the only space which would provide ingress and egress to the petitioners to reach to their site or home. It is also averred that the claim of piece of land being used as a road for about 35 years is false as Maruti Bungalows came into existence in 2006 and other developers have come to the site even more recently.

27. It is also stated in the affidavit as can be seen that the objections have been raised for proposed 30 meters road which is running along the Army and defence land and installations and due to the security issues, State Government has deleted that portion of the highway and bridge as per the notification that stands today. Even the Municipal Commissioner in his meeting dated 8.8.2011 with the local military authority had agreed to the Army security concern. These aspects, if they are not controverted, have to be accepted at their face value particularly when they are coming from the responsible Army officials.

28. It was vehemently contended by the learned Senior Advocate Mr. Desai that the Army authority have participated in the process of the Development Plan and Town Plan and both have been suitably altered to the requirement of the Army and, therefore, now the Army authorities are estopped from raising any objection in giving this land for the purpose of TP Road. In our view, in these appeals or petitions, this contention is not sustainable. It is nobody's case that any attempt is made by the Corporation to ask for and to take possession of the land in question for implementation of the scheme. It is also required to be recorded that the reliance is placed only upon legal fiction on basis of section 17(3) of the TP Act and 48-A of the TP Act, but the question is still open whether any authority as contemplated under section 17(3) would include cantonment board or not and then only, section 48A would apply. That question is yet to be determined by a competent court and may be raised before the learned Single Judge in the petition.

29. Strong objection was raised against the attitude of the Army authorities against the petitioners on the ground that the Army authorities have closed the road and are alleging that the petitioners have nexus with the terrorist activities and development of the area would result in purchase of the property by persons who are threat to the nation, whereas the petitioners are yet in the process of developing the property and have yet not sold the property. The allegation, therefore, is not correct. This objection raised by learned advocate Mr. Panchal on behalf of the petitioners in SCA No. 9196 to 9199 of 2011 is difficult to be accepted. We have read the affidavit sworn by the Army Official in LPA No. 1052 of 2011 so also in Special Civil Application No.9196of 2011. We have read the affidavit along with learned Advocate Mr.Panchal and have re-read it but we are at loss to find such specific allegations against the petitioners. What is averred in the affidavit is of general nature and that too in a petition by residents of Maruti Bungalows and the photographs of development is shown which probably relates to development being made by these petitioners but that is only with a view to show the development part and no specific allegation of such nature appears to have been made. Those photographs are produced herein above and it is evident that such specific allegations are not made.

30. From what is discussed herein above, what emerges is;

Disputed land is part of the cantonment and is an Army land of category A-1, prima facie.

This land is in physical occupation of the Army.

None of the petitioners have been able to show any right over the property of any nature.

What is contended is their convenience and difficulties faced on account of non-implementation of the Town Planning Scheme by the respondent Corporation.

TP Scheme takes its own time in being implemented.

Town Planning Scheme is only Draft TP Scheme sanctioned by the Government wherein the disputed land is shown as part of the TP Road for which the Corporation is negotiating with the Army authorities and no conclusion is yet arrived at. Both the Army authorities and the Corporation assert their according to their interpretation but the fact still remains that the land in question is in occupation of the Army.

The Army authorities have genuine security concern The petitions are admitted and pending and are yet to be finally decided.

31. Now, therefore, the question would be whether the convenience of citizens in absence of any right over the disputed property can outweigh the established right of Army authorities over and above the disputed land particularly when there are serious security concern and whether this court should exercise extra ordinary jurisdiction under Article 226 of the Constitution of India and direct the Army authorities to permit passage of the citizens. The answer that any Court can give would be in negative. Once the passage is open, passage would be open to all and would include passage by person who may be a threat to the security of Army or may be a nation as a whole. We do not find any substance in the averment that the petitioners have been using this land for a long time for the reason that Maruti Society has come into existence only in the year 2006 and the other petitioners who are developers have moved in even more recently. It also cannot be over looked that any prudent man before purchasing the property would examine question of accessibility to the property and in the instant case, from the maps produced on record, it is clear that the Town Planning Road available from eastern side of Maruti Bungalows and touches the main road. Other properties which are being developed by the petitioners and located just near Maruti Bungalows have also their access through that road. Petitioner in Special Civil Application No. 9778 of 2011 is also similarly situated We therefore do not find that this is the only road through which the petitioners will have access to their property. May be that this road,if it is opened will provide an easy access to their property but in absence of any right on the disputed land, merely on the legal fiction and at the risk of security, they cannot be permitted passage by giving mandate to the Army authority to permit passage. In our view, therefore, petitioners in Special Civil Application No. 9196 to 9199 and 9210 so also 9778 of 2011 are not entitled to any interim relief.

31.1 We are also of the view that the learned Single Judge has erred in granting the interim relief permitting passage to the private respondents in the Letters Patent Appeals. Therefore, that part of the impugned order is liable to be set aside. We may observe that the fact that the Army authorities are permitting use of Tarapor Road cannot, in any manner, be used to justify passage through the land in question, firstly, because there is permissive use and secondly, because two locations are apart by about one and half kilo meter and would carry different considerations. It is for the Army authorities to determine which area is sensitive or more prone to such hazard or which area is not or through which way to a permit passage and whether or not to permit such passage. It is their discretion and in absence of any right of any party, mandate cannot be issued.

32. Learned Advocate Mr. Panchal has relied on the decision of Delhi High Court, as reported in 16(1979) DLT 266 between PS Gill and Ors. vs. Union of India and others as decided on 12th October, 1978 besides decision of Karnataka High Court in Dr.Nitin G.Khot and others v.Station Commandant, Belgaum and others, AIR 1998 Karnataka 300 and an unreported decision of Punjab & Haryana High Court at Chandigarh in CWP No. 20615 of 2009 (O&M) in Vikram Thakur versus Union of India dated 30.3.2010.

33. Karnataka High Court held that in respective roads in cantonment area of category A-1, citizen can maintain writ petition. It was held that merely because road passes through Army or cantonment area does not change their nature authorizing authorities to put restrictions resulting in inconvenience to general public affecting their fundamental right of freedom of passage. In our view, this decision will not be applicable to the facts of the present case for the reason that it relates to roads in cantonment whereas in the case on hand,the disputed land is not forming part of the road within the cantonment. It is only shown to be part of the TP Road. The decision of Punjab and Haryana High Court in the case of Vikram Thakur versus Union of India also takes a similar view and similar would be our decision on its applicability.

34. Delhi High Court decision is relating to acquisition proceedings and will not be applicable to the facts of the present case at this stage when we are only deciding the question of interim relief on the basis of prima facie case.

35. The Resultant effect of the foregoing discussion would be that the Letters Patent Appeals would stand allowed. Order impugned in the Letters Patent Appeal granting interim direction to the respondent stands set aside. Petitioners of petitions which have been listed before us directly are refused the interim relief and the petitions shall now be listed with other petitions being SCA No. 3622 of 2011 and other allied matters before the appropriate court.

36. Before we part, we make it clear that the earlier directions given by this court in Letters Patent Appeal No. 1052 of 2011 and allied matters by order dated 20.7.2011 would stand vacated. However, having had a look at the maps produced before us and the fact that the Draft Town Planning Scheme is yet not properly implemented,besides the fact that the Higher Authorities of the Corporation as well as the Army are negotiating on working out solution for implementation of the Draft TP Scheme in question in respect of the disputed land, we would only hope that the authorities in the Army will continue the arrangement which is made by our order dated 20th July, 2011 to reduce the inconvenience of the concerned petitioners. Needless to add while parting that whatever observations are made in this order are prima facie and only with a view to consider the question of interim relief claimed by the petitioners.

37. Civil Applications for stay also stands disposed of accordingly.

38. No order as to costs.

(A.L. Dave,J.) (C.L.Soni,J.) an vyas

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Gujarat High Court