Gujarat High Court
Riverside vs State on 14 July, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
Print
SCA/3622/2011 40/ 40 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3622 of 2011
With
SPECIAL
CIVIL APPLICATION No. 4980 of 2011
With
SPECIAL
CIVIL APPLICATION No. 4981 of 2011
To
SPECIAL
CIVIL APPLICATION No. 5012 of 2011
=========================================================
RIVERSIDE
SCHOOL THROUGH ADMINISTRATOR - Petitioner
Versus
STATE
OF GUJARAT THROUGH CHIEF SECRETARY & 2 - Respondents
=========================================================
Appearance
in Special Civil Application No. 3622/2011
MR
AMIT M PANCHAL
for
Petitioner
MR HK PATEL AGP for Respondent: 1,
MR PS CHAMPANERI,
Additional Solicitor General for Respondent: 2,
MR PRASHANT DESAI,
SR. ADVOCATE WITH MR DHAVAL G NANAVATI for Respondent:3
Appearance
in Special Civil Application No. 4980 of 2011 to 4982 of 2011
MR
AMIT M PANCHAL
for
Petitioner
Govt. Pleader for Respondent: 1,
MR PS CHAMPANERI,
Additional Solicitor General for Respondent: 2,
MR PRASHANT DESAI,
SR. ADVOCATE WITH MR HK Patel for Respondent:3
Appearance
in Special Civil Application No. 4983 to 5012 of 2011:
MR
AMIT M PANCHAL with Shivani S. Rajpurohit
for
Petitioners
MS MINI NAIR AGP for Respondent: 1,
MR PS
CHAMPANERI, Additional Solicitor General for Respondent: 2,
MR
PRASHANT DESAI, SR. ADVOCATE WITH MR HK PATEL for Respondent:3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 14/07/2011
15/07/2011
COMMON
ORAL ORDER
This group of petitions contained almost identical challenge based upon identical grounds and facts. They were heard together for admission as well as granting of any interim relief.
Special Civil Application No. 3622 of 2011 is filed by Administrator of a School, run by Riverside Education, A Non-profit making Organization, as it is stated in the memo of petition and registered under Section 25 of the Companies Act, 1956. This petition contains following prayers - :
"(A) Directing the respondent nos. 1 and 3 to forthwith take steps in accordance with law to implement the Town Planning Scheme No.67, Hansol and make an alternative motorable road available for access to the petitioner school;
(B)Restraining the respondent no.2 from closing the existing accessible road to the petitioner school, till an alternative road is made available by the respondent nos. 1 and 3, for the use of the general public and the petitioner school, as required under the Town Planning Scheme No. 67, Hansol;
(C)Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to -
Restrain the respondent no. 2 from closing the existing accessible road to the petitioner school, till an alternative road is made available to the petitioner school by the respondent nos. 1 and 3 under Town Planning Scheme No.67, Hansol;
Direct the respondent no.2 to permit the petitioner school, its students, their parents and staff to use the army road presently being used by the petitioner to have ingress and egress to the school situated in Final Plot No. 51 of the Town Planning Scheme No.67, Hansol;
Direct the respondent nos.1 and 3 to forthwith take immediate steps to implement and operationalize the Town Planning Scheme No.67, Hansol, by making the roads motorable and usable by the petitioner school, its students, their parents, staff and the general public;
(D) Your Lordships may be pleased to grant an ex-parte ad-interim relief in terms of prayer C (i),(ii) and (iii), above;
(E) Your Lordships may be pleased to pass such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case;
(G) Your Lordships may be pleased to award costs."
Special Civil Application Nos. 4980 of 2011 to Special civil applications 5012 of 2011 have been filed by residents of Society situated in survey Nos. 284 and 285. In this group of petitions, the following prayers are made:
"(A) Directing the respondent nos. 1 and 3 to forthwith take steps in accordance with law to implement the Town Planning Scheme No. 67, Hansol and make an alternative motorable road available for access to the petitioner residence;
(B) Directing the respondent no.2 to permit the petitioner to use the existing accessible road, till an alternative road is made available by the respondent nos.1 and 3, for the use of the general public and the petitioner, as required under the Town Planning Scheme No.67, Hansol;
(C) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to-
Direct the respondent no.2 to permit the petitioner to use the army road presently being used by the petitioner to have ingress and egress to the petitioner's society situated on Survey No. 284-285 of the Town Planning Scheme No.67, Hansol;
Direct the respondent nos.1 and 3 to forthwith take immediate steps to implement and operationalize the Town Planning Scheme No.67, Hansol, by making the roads motorable and usable by the petitioner and the members of the petitioner's society;
(D) Your Lordships may be pleased to grant an ex-parte ad-interim relief in terms of prayer C(i) and (ii), above;
(E) Your Lordships may be pleased to pass such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case;
(G) Your Lordships may be pleased to award costs;"
Thus, essentially petitioners have urged this court under Article 226 of the Constitution of India for issuing writ of mandamus or any other appropriate writ or direction to respondents so that petitioners and others may have unhindered and unrestricted egress and ingress to their respective residences and properties, which is only a part of their larger right of free movements under Article 19(1) (d) of the Constitution of India, and hence cannot be violated by the respondent no. 2, leaving no way or path to approach to their residences and properties.
Facts in brief leading to filing of these petitions deserve to be briefly stated for appreciating rival contentions of the parties, as the matters have been argued for quite some time and both the sides have made submission at length for many days.
This group of petitions could be divided in two parts namely, the First part, consisting of the petition being Special Civil Application No. 3622 of 2011, filed on 16th March, 2011 as the petitioner's School came to know that the respondent no.2 was likely to close the approach road to the school passing through their land on receipt of a copy of the caveat application dated 15.02.2011 lodged by the respondent no. 2 in this court, indicating that respondent no.2 had lodged caveat in this court apprehending that the opponent, in caveat and proposed petitioner school, when files petition and seek interim injunction against caveator's action of closing public access to army land situated in Survey no. 8 and 2A in Hansol, Ahmedabad, this court may not pass any ex parte order without herein the caveator. This Court on 17th March, 2011 issued notice making it returnable on 28th March, 2011 recording that Shri P.S. Champaneri, learned Asst. Solicitor General on Caveat, waives service of notice on behalf of respondent no. 2 i.e Union of India and direct service was permitted for other respondents.
Thus in these two petitions respondent no. 2's apprehended action of blocking the road known as 'Tarapor Road' or shown by respondent no. 2 in their affidavit in reply in SCA 3622 of 2011 on page 19, which is not blocked till date and in SCA 4980 of 2011 to SCA 5012 of 2011, the actual blocking of passage nearing plot no.284, 285 and Airport circle are under challenge as this blocking is without authority of law and in violation of Article 19(1)(d) of the Constitution of India.
The petitioners of Special Civil Application No. Nos.4980 of 2011 and others allied matters have produced on record the relevant copies of documentary evidences indicating that in their society some citizens are suffering from deceases like cancer and renal complications requiring their frequent visits to nearby hospitals in their private vehicles which now from 1.04.2011 has not been possible. The petitioners have averred that some residents are doctors by their professions and some are in other profession requiring them to use their four-wheeler for their commutation. These people have been badly affected on account of the barbed wire barricade put by respondent no. 2 on the land which is in fact part of TP Scheme Road.
This Court (Coram: Rajesh H. Shukla, J.) on 02.05.2011 passed the following order :
"Learned counsel Mr. Amit Panchal has, before opening the matter, pointed out certain difficulties faced by the residents and Sr. Counsel Mr. P.G. Desai appearing for the Corporation has stated that a proposal has already been moved to respondent No. 2 Army authorities for finding a solution to the issue involved.
2. Learned Asst. Solicitor General Mr. P.S. Champaneri has stated that he would also see that a decision is taken, but has requested that some time may be necessary.
3. Therefore, considering the nature of the controversy, it is desirable that respondent No. 2 army authorities may consider the proposal given by respondent No. 3-Corporation with human touch and positive attitude so as to find out some workable solution without compromising their apprehensions about security or other such considerations.
4. Learned counsel Mr. Champaneri will impress upon the authorities concerned to expedite consideration of the proposal and respondent No. 2 shall take appropriate decision within four weeks and in any case on or before 14.6.2011.
S.O. to 14.6.2011."
The parties have exchanged their respective affidavits and counter affidavits justifying their stand which could be broadly stated as under:-
The petitioners have contended that the land in question could not have been blocked so as to prevent the citizens like petitioners from using it for the accessing their property i.e. school and residences.
The claim of respondent no. 2 in respect of alternative existing road is not tenable as the authorities, who are in charge of the land, namely Ahmedabad Municipal Corporation, has in a specific query raised to it under Right to Information Act, denied that there exists any such road which respondent no. 2 has claimed to be existing as alternative road.
The petitioners relying upon the decision of Division Bench of Karnataka High Court in case of Dr. Nitin G .Khot and others V. Station Commandant Belgaum and others reported in AIR 1998 KARNATAKA 300 Submitted that the Army as such cannot be treated as an entity different than the Union of India, WHICH is under obligation to respect and fulfill its constitutional obligation qua citizens. The army cannot be permitted to place undue restrictions upon the movement of the citizens. The petitioners' advocate extensively read observations of Karnataka High Court in support of his submissions that Article 19(1)(d) cannot be permitted to be violated by any arbitrary and unreasonable orders of army authorities. The army being part of the Government of India is also under equal obligation to respect fundamental rights of citizens.
The petitioners' advocate contended that though notice was issued way back in the month of March in the petition filed by school till date respondent no. 2 has not cared to produce any notification issued by the Government of India declaring the land in question to be land specifically ear marked for active army operations. In absence of any Notification from the Government of India the respondent no. 2 cannot maintain it's stand that the land in question belongs to Army for it's exclusive active operational requirements.
The learned advocate for the petitioners contended that army has in fact without authority blocked the passage leading to the residences of the petitioners in second part petitions. The land in question is admittedly forming part of the proposed TP road and when there exist no other alternative road and when the proposal of AMC is under consideration the respondent no. 2 ought not to have blocked the path which is in use since last more than 35 years.
The respondent no. 3 is under statutory obligation to provide road and approaches the court may therefore direct it to take prompt action in implementing the TP Scheme in the area so that the road which is claimed to be Army land by respondent no. 2 could be immediately made operational without any hindrance.
The petitioners' advocate in support of the petitioners of SCA 4980 OF 2011 and other allied matters further contended that the respondent no. 2 under the guise of so called threat perception attempted to impose impediments in the only way available to the petitioners to reach their residences which is absolutely in violation of their fundamental rights and hence deserve to be quashed and set aside.
The petitioners advocate further contended that petitioners have categorically dined that land on which the barbed wire barricade is created defense land as alleged.
The advocate for the petitioner further contended that before placing blocking the way of the petitioners the respondents were under obligation to hear the petitioners. The respondent no. 3 was under
obligation to provide alternative motorable road to the petitioners.
The advocate for the petitioner further contended the Cantonment Act does not provide any blanket powers in the respondent no. 2 to create impediments in way of the petitioners.
The advocate for the petitioner further contended that the respondent no. 2 has indicated clearly that they were not interested in finding any solution to the problems of the petitioners or else they would have taken prompt action on the proposal of AMC long back.
The Learned counsel for respondent no. 3 AMC contended that development scheme and its provisions are required to be respected by all including the respondent no. 2 army authorities.
The Learned counsel for respondent no. 3 AMC relying upon the decision of the apex court in case of The Municipal Corporation for Greater Bombay and another, Appellants v. The Advance Builders (India) Pvt. Ltd. and others, Respondents reported in AIR 1972 SC 793 contended that, as observed in paragraph no. 3 of that judgment on a consideration of the provisions of the Bombay Town Planning Act, 1954(old town planning Act, which is in fact pari material with the present Act so far as duty to develop is concerned) the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has been long held that, where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done. Therefore the authorities like army also would have appreciated these provisions and extended its cooperation for implementing the provisions of the TP Act.
The Learned counsel for respondent no. 3 AMC tracing back the history of development plan and its subsequent variations submitted that originally in the sanctioned revised Development Plan of 2002 the Road was shown to be 36 meters. Out of this 36 meters Road only 6 meters was in the Cantonment Area and remaining 30 meters was on the Corporation land. However as stated in the affidavit in reply affirmed by one Nilesh R.Baranda, Deputy Estate Officer-North Zone AMC, on page no. 56 paragraph mo. 5 the local military authorities for safe guarding interest of one individual of that are and at his behest filed objections for the Revenue Survey no. 296 to 299 -301 and got reduced 30 meters road into 18 meters in Revised Development Plan as residence of that individual is situated near Revenue Survey no. 296 to 299 and if the original proposed road was not reduced some portion of his land was going into the road line and alignment, as referred t in affidavit in reply on page 81 and 82. The further Revised Development Plan published in the year 2006 with its corrigendum once again shows Road to be of 30 meters as originally proposed in the revised development plan.
The Learned counsel for respondent no. 3 AMC has further contended that the place where in the local military authorities have placed barricades is forming part of the Public Road in the sanctioned Draft TP Scheme no. 67 of for Hansol. On account of the provisions of section 48 A of the Gujarat Town Planning Act the respondent no. 2 did not have any authority to hinder the same in any manner, it amounts to acting contrary to the very statutory provisions.
The Learned counsel for respondent no. 3 AMC invited this Court's attention to the provisions of Section 48-A (3) and submitted that so far as Sanctioned Draft Scheme provides for public-street and public roads it is treated as if it was preliminary scheme itself.
The Learned counsel for respondent no. 3 AMC also contended that the petitioners are correct that there exist no alternative road as alleged by the respondent no. 2 in their reply.
The Learned counsel for respondent no. 3 AMC invited this court's attentions to various correspondences going on between the respondent no. 2 and 3 for seeking Government of India's cooperation through local military authorities in implementing the development schemes.
The learned A.S.G. for the respondent no. 2 contended that as both the piece of lands belongs to Army authorities no one has any right to free access through it.
The learned A.S.G. for the respondent no. 2 contended that as per the provisions of The Cantonments Act 1924 as well as 2006 and on account of various provisions and definitions the land in question being purely land of Army no one has any right to enter thereon.
The learned A.S.G. for the respondent no. 2 relying upon various provisions of Cantonment Act submitted that Cantonment Land cannot be subjected to any local laws and hence the petition itself deserves to be dismissed.
The learned A.S.G. for the respondent no. 2 replying upon the various provisions of the Cantonment Act and Cantonment Land Administration Rules 1937 especially rule nos. 2, 3, 4, 5, 6, 7, 9, 10, 14, contended that so far as the Road talked about in school's petition is concerned its Army Road and its is maintained by Army however on account of non availability of adequate facilities like compound wall to prevent it from being trespassed by School going people and children parents it is used but that use is also only illegal and Army is well within its rights to prevent people from using it.
The learned A.S.G. for the respondent no. 2 contended that so far as the passage in petition no. 4980 of 2011 is concerned it is not public road at all. The AMC cannot claim it to be part of the TP Scheme Road without permissions from Government of India.
The learned A.S.G. for the respondent no. 2 contended that the respondent no. 2 has sufficiently indicated that on account of continuous intelligence inflows and existing threat perception of terrorist attacks the passage was required to be blocked. The Court may not interfere with the same.
The learned A.S.G. for the respondent no. 2 relying upon the decisions of Gauhati High Court in case of Jugal Baruah vs. Union of India reported in AIR 2003 Gauhati 37 and of Delhi High Court in case of Traders welfare Associations vs. Union of India in CW 3683 AND CM 6365 OF 2003 decided on 28.05.2003 and judgment of Allahabad High Court set out in the reply, contended that once the defense land is earmarked than the same is only to be dealt with by Government of India and local laws would not have any applicability.
The learned A.S.G. for the respondent no. 2 contended that the alternative road is available and it could be used by the petitioners for access to their premises. The learned A.S.G. for the respondent no. 2 replying upon the extract of the land register maintained by the Defense Estate Officer contended that the land in question is clearly classified to be A1 Defense Land and as such the Army Authorities have total control over the same disentitling the petitioners from seeking any relief of passage through it.
This Court has heard the learned counsel for the parties at length and perused the documents on record wherefrom the following indisputable aspect emerging deserve to be set out as under:
The petition of First Part is school petition seeking relief and direction to respondent no. 2 as well as respondent no. 3. In this petition the Road shown to be used by public and petitioners' school children staff and parents is admittedly on the Land belonging to Army. The said road is not blocked till date. The reason for not blocking the same by army is non availability of Compound Wall etc. But the photographs produced or color prints out produced by petitioners of SCA 3622 f 2011 go to show that till date that road is in active used by general public like school buses students staff etc. The petitioner's demand of information under the Right to information Act from the respondent no. 3 on the aspect mentioned in communication dated 23.03.2011 and its reply from the respondent no. 3 dated 25.03.2011 on page 29 clearly indicates that there exist no alternative Road as alleged by the respondent no. 3 which could be said to be an alternative road available to the petitioners.
The respondent no. 2 has not denied this aspect nor have they challenged the same in any manner. Therefore one aspects become clearer that there exist no alternative Road as alleged by the respondent no. 2.
The Army Road presently used by public and school children is admittedly not blocked by the respondent no. 2. Though it has claimed that its use by public and school children staff and parents is nothing but trespassing.
The Army Road used at present by school buses children parents and public has in its surroundings army installations like CDS depot, ammunition dump, butchery etc. This road of Army is not blocked at all till date and reasons shown to be lack of compound wall, etc. Whereas the passage which came to be barricaded with barbed wire fencing is situated away from the said Army Road which was sought to be closed by Army requiring filing of the SCA 3622 OF 2011, and which is not closed till date and is used by public including school children, but far off passage leading to the way and approach to the petitioners' RESIDENTIAL PROPERTY of petitions being SCA 4980 OF 2011 and other allied matters is blocked on 1.04.2011 which required them to prefer the subsequent part no. 2 petitions as stated herein above. There appears to be no installations of Army on the contrary it's nearer to the Air port circle and it is stated to have been in use since last 35 years.
The respondent No. 2 has filed various affidavits in replies but in no where it has been contended that there was any sensitive army or military installations near the blocked passage.
The fact remains to be noted that Revised Draft Development Plan prior to 2004 shows Road on which the barricades exist to be of 30 meters. But only in 2004 it was reduced to 18 meters. But once again the Final Revised Draft Development plan as published with corrigendum shows the proposed Public Road to be of 30 meters with appropriate road alignments. This becomes evident from the copies of Notifications passed on by the learned advocate for the respondent no. 3. The notification dated 20.02.2004 issued under Section 19 of the TP ACT provides that "The 36 mt. wide proposed road passing through R.S. no. 284, 285, 287, 288, 293, 295, etc of village Hansol be reduced to 18 mt. wide and 36 mt. proposed road passing through R.S. no. 296, to 299 ,301 etc of village Hansol shall be deleted and land thus released shall be designated for Residential -I use under section 12 (2)(a) of the act as shown on the accompanying plan"
The Notification dated 21.04.2006 issued by the State of Gujarat under Section 19 (1) of TP ACT proposed following variation "
(1) The 18 mt. wide D.P. road passing through R.S. no. 274, 275, 284, 285, 286, 287, 288, 293, 294, 295, etc paiki of village Hansol shall be widened to 36 mt. under section 12(2) (d) of the said act as shown in the accompanying plan"
The State of Gujarat issued Corrigendum dated 06.05.2006 relevant part whereof read as under " in the Schedule Sr. No. 1 and Sr. no. 2 of the above notification's figure "36 mt" is replaced by "30 mt"".
It would be appropriate to set out part of affidavit in reply filed by the respondent no. 2 and the respondent no,3 hereunder.
On page-56 of the compilation of the memo of Special Civil Application No. 4980 of 2011, it is stated as under:
"3.
.......I say that the steps were, therefore, taken at the first instance to place a notice board at the space in question cautioning the trespassers, in the month of December, 2010. I state that in the month of March, 2011, specific intelligence inputs were received by the Military authorities which confirmed our earlier inputs and increased our overall security concerns and threat perception of the surrounding areas of the entire Military station and had led to taking a decision to place barricades on Army land comprising part of Survey No. 37-A and part of Hansol firing range i.e. to say a land in question after observing large-scale movement of heavy vehicles and construction materials. It was also envisaged by Army that such large-scale movement of labour with unverified antecedents on Army land would be a major security threat to the soldiers as well as extremely sensitive ammunition and equipment in the Unit in immediate vicinity of the Maruti Bungalows and the upcoming residential schemes.
I further state and submit that at the initial stage the barricaded was placed on the entire space of land on both sides. However, written request from AMC and verbal representation from residents of Maruti Bungalows, were received that the barricade on the said piece of army land causes great hardship and inconvenience to the school going children to the Airport circle. It was also represented to permit at least the Maruti Bungalow residents of the area to facilitate them for departing the school going children either on foot or on two wheeler vehicles. Accordingly, a humanitarian and sympathetic view was taken as the school going children will not be put to any difficulty. That three feet space was kept open for such use by the parents and school going children either on foot or on two wheeler vehicles. This humanitarian approach of permitting pedestrians or two wheelers to pass through Army land is purely temporary and AMC has the duty and responsibility to develop the existing motorable road, to the convenience of the colonies approved by AMC. For the reasons best known to them, the AMC has failed to develop this existing motorable road since 2005-06 when Maruti Bungalows came into existence. AMC was in agreement with our security concerns during the it meeting held on 16 Apr. 2011. (Quorum and deliberations of such meetings is attached as Appendix A). At this stage, I state that a visual vigil and observation is maintained by the Guards on duty upon pedestrians and school going children.
4. At this stage, I would like to state that the present petitioner and other residents of the Maruti Bungalows have an alternative motorable road to reach the main road, meeting at the Airport road which they have been using since 01 Apr.2011. The failure of the municipal authorities to provide black top tar road, by no stretch of imagination, can be said that there is no motorable road available. I further state and submit that the Maruti Bungalows came in existence on the land of survey no. 284 in the recent past, and the motorable road provided in development plan to meet on the main road is consisting of a distance of approximately 1.45 km., out of which approx. 0.50 km. is pakka constructed road. To avoid this additional distance of using this existing motorable road, as shown in the development plan of draft T.P. Scheme no.67, the petitioner by suppressing this material fact from the knowledge of this Hon'ble Court, are praying for the equitable relief. I further request for a court commission to ascertain the existence of this road. I say that the petitioners have not only suppressed the material fact, but have not apparently come with clean hands before this Hon'ble Court. I further state and submit that in the nearby vicinity of the existing Maruti Bungalows, large scale construction activities of Apartments and Flats are under way. This fact has also been not stated by the petitioners. Photographs of the mushrooming construction activities are placed for the perusal of the Hon'ble Court (Photographs attached as Appendix B) to favour builders and developers behind the Taj hotel and in the vicinity of Maruti Bungalows the AMC and certain elements with vested interests are trying to mislead the Hon'ble Court by utter falsehoods and wrong information as elucidated below. On strong objections from the Army on 20th Feb. 2004 the DP was amended and the 30 meter road was deleted by notification by state government and even in the proposed draft town planning scheme sanctioned by notification by state government on 16 Sep. 2004 again that 30 meter road is deleted at point number 5 as a variation. Factually, due to army's security concerns and related objections the state government has already deleted the road. The AMC is not showing the notifications and hiding the facts, thereby misleading the Hon'ble Court. Stating all facts, a counter-affidavit to the affidavit filed by AMC on 07 Jul. 2011 will be filed subsequently."
On page-75 of the compilation of the memo of Special Civil Application No. 4980 of 2011, it is stated as under:
"6.
At this stage, I further state and submit that in close proximity of the Army cantonment and nearby vicinity of the existing Maruti Bungalows large scale construction activities of Apartments and Flats are under way. This fact has also not been stated by the petitioners. As stated in Time of India dated 11 Jul.2011, AMC proposes to build a proper 30m highway and bridge crossing the Sabarmati river overlooking the notified areas of the Army. (copy attached as Annexure B). This is a precursor to the objectionable roads being planned thereby compromising national security in general and security of the Army cantonment in particular. To favour builders and developers behind the Taj hotel and in the vicinity of Maruti Bungalows the AMC and certain elements with vested interests are trying to mislead the Hon'ble Court by utter falsehoods and wrong information as elucidated below:
On Strong objections from the Army on 20th Feb.2004 the DP was amended and the 30 meter road was deleted by notification by state government and even in the proposed draft town planning scheme sanctioned by notification by state government on 16 Sep.2004 again that 30 meter road is deleted at point no.5 as a variation. Factually, due to army's security concerns and related objections the state government has already deleted the road. The AMC is not showing the notifications and hiding the facts, thereby misleading the Hon'ble Court. Stating all facts, a counter-affidavit to the affidavit filed by AMC on 07 Jul. 2011 will be filed subsequently."
On page-88 of the compilation of the memo of Special Civil Application No. 4980 of 2011, it is stated as under:
"....
I say that it defies common sense as to why a responsible officer of the respondent no. 2 would stoop to such a level so as to bring out absurdity in the affidavit filed by him in absence of any cogent material and without placing any valid, legal notification issued by the Government of India to substantiate the claim that the road land is Defence Land and is classified as Land in Class A, Class B or Class C Land. I say that merely giving a nomenclature of Class A1 land would not make the said land a Class A1 Land. I crave leave to this Honourable Court to place on record a Panchnama dated 7.4.2011 drawn by the Talati of Village Hansol with regard to barricading of the road land in question and which suggests that the said land has been used as road for about 50 years. Annexed hereto and marked as ANNEXURE
- III is the copy of the said Panchnama dated 7/4/2011."
On page-89 of the compilation of the memo of Special Civil Application No. 4980 of 2011, it is stated as under:
"...
I say that the said land could never be A1 Defence Land, as it has never been actually used or occupied by the authorities of the respondent No.2 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. I say that even under Rule 9 which 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, no material has been produced before this Honourable Court to substantiate that the road land is A1 Defence Land. I therefore say that there is no power much less any authority in the respondent no.2.....".
On page-56 of the compilation of the memo of Special Civil Application No. 3622 of 2011, it is stated as under:
"4.
It is stated that the said Lieutenant Colonel has for the first time made reckless and baseless allegations against the officers of the answering respondent - corporation without any base much less evidence to produce on record to strengthen his bold allegations. No iota of material or evidence is produced in support of his bold allegations made against the officers of the respondent Corporation. I deny all the allegations made in the affidavit dated 12.07.2011 by the deponent of the said affidavit, as those allegations have no base or legs stand for a moment.
5. It is very shocking and surprising that a responsible officer of the rank of the Lieutenant Colonel of the Indian Army is making such a bold allegations without any bases or evidences and only to safeguard the self interest of one individual of that area, at whose behest the Local Military Authorities have filed the objections for the R.S. No. 296 to 299-301 and got 30 meters road reduced to 18 meters road in Revised Development Plan. It appears that since the residence unit of that very individual is situated near RS No.296 to 299 and some land would go in road line and has referred to in the notification mentioned in the affidavit under reply at page 81 and 82, it also appears that by sacrificing the public interest the proposed road in Revised Development Plan passing through RS No.296 to 299-301 has been deleted only to please the said individual by taking a shelter of sudden security threats and the militant activities cooked up and come up and have received by the local military authority and so called threats have compelled them to close the road by placing the barricades without assigning any justification much less a satisfactory evidence for doing so and more particularly at the time when the town Planning Scheme No. 67 is at the verge of getting nod from the State Government and after the approval the Town Planning Scheme will become the Act and no variation much less modification cannot be made, the local military authority have suddenly awakened and taken a shelter under the guise of security threats and militant activities and try to protest the interest and help the said individual.
6. It is stated that the deponent of this affidavit is denying the allegation that any of the officer was involved much less any officers of the Corporation have any vested interest in favouring builders and developers behind Taj Hotel and in the vicinity of Maruti Bungalows. There was no attempt by any of the officers of Corporation to mislead this Hon'ble Court in any manner. The deponent of the Affidavit filed by the Local Military Authority has miserably failed to establish as to how the officers of the Corporation much less deponent has misled this Hon'ble Court. From the bare reading of the averments it appears and suggests that Shri Sanjay Dalal, Lieutenant Colonel, has made this allegations only with a view to divert the attention of this Hon'ble Court from the queries put to him by the Hon'ble Court and directed him to produce the Notification so issued by the Union of India regarding the road in question, to provide the designation of the authority who has issued the order to put the barricades on the road this questions were put to the Local Military Authority by the Hon'ble Court as the road in question is a public road and used by the public at large. It is further stated that Shri Sanjay Dalal was miserably failed to produce the notification notifying the land in question is A1 Defence Land.
7. It is stated that vide notification n. GHN/10 of 2004/TPS 112003/3391/L dated 16.09.2004, the Ahmedabad Municipal Corporation had declared its intention of making the Draft Town Planning Scheme No.67 (Hanshol-I) and by exercising the power vested under Sub Section (1) of Section 42 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act"), the Ahmedabad Municipal Corporation had published in the prescribed manner a draft scheme in respect of the area included in the Town Planning Scheme No.67 (Hanshol-I), wherein in the varied revised final development plan showing 18 meters road passing through the said area in question where barricades are placed by the Local Military Authority. The Ahmedabad Municipal Corporation has followed the provisions of the Act and after taking into consideration the objections so received by the Corporation submitted the revised development plan to the State Government. It is pertinent to note that the revised development plan so revised which came into force on 18.05.2002 and even in the said development plan the said road is shown passing through the Cantonment area an ultimately leading to Hansol area which is in the city limit of Ahmedabad."
Thus out of these allegations and counter allegations it emerges that the land on which barricade is placed is not near any sensitive army installations rather the Army Road which is open till date to public use has more sensitive installations but it has not been closed by Army till date. It is not suggested hereby that it must be closed.
The affidavit in reply filed by respondent no. 2 did not contain any challenge to the submissions and averments made on oath on behalf of petitioners that land on which their exists barricades on 1.4.2011 was in use by public since last 35 years.
The respondent no. 2 has not disputed that there exists a Draft Town Planning Scheme, wherein, the road in question is shown to be at least 18 mt. Though in fact as per the revised development plan, it is of 30 mt width road.
The land on which there exists barricades as on date, forms part of 18 mt road, (now 30 mt) which is there in the proposed scheme.
The respondent no.2 as though contended that there exists an alternative road, but the authority, which is supposed to be in knowledge of said road, has specifically contended to a query put to it under Right to Information Act and that answer has came on record, which has remained undisputed or uncontroverted.
The Court is of the view that in light of the observations made by Karnataka High Court in paras - 7, 8, 9, 11 and 12, and in view of the fact that extract of land register maintained by Defense Estate Officer also contains transfer of part of A1 land into (C) land and old firing range is completely surrounded by civilian and civil vicinity and on the old firing range, there exists staff quarters of army members.
The Court's order dated 2.05.2011 set out herein above in this group of petition contained following directions namely:-
"3. Therefore, considering the nature of the controversy, it is desirable that respondent No. 2 army authorities may consider the proposal given by respondent No. 3-Corporation with human touch and positive attitude so as to find out some workable solution without compromising their apprehensions about security or other such considerations.
4. Learned counsel Mr. Champaneri will impress upon the authorities concerned to expedite consideration of the proposal and respondent No. 2 shall take appropriate decision within four weeks and in any case on or before 14.6.2011."
No reply from the respondent no.2 contains any decision by any authority apropos the aforesaid direction issued. This Court is of the view that Respondent No. 2 or any responsible officer of the Ministry of Defense should have filed proper affidavit in the matter. The Union of India is party and notices have been issued since 17.03.2011. It appears from the communication dated 29.06.2011 that only on that day the concerned officer has sent material to his superiors for it's onwards transmission to Authorities. It does not reflect any sense of urgency at all.
The respondent no.3's attempts for resolving issue by providing alternative land adjacent to respondent no. 2's land has been questioned on the ground that value of that land offered is less than the value of land needed for development purpose. One fails to understand how concept of value of land in terms of money can ever be the relevant considerations for not accepting the proposal. The insistence of alternative land of the equal market value irrespective of its location in terms of it strategic use or contiguousness, would amount to irrelevant consideration and it cannot be permitted to work as an impediment in the way of development undertaken by the Developing Agency in due discharge of its statutory duty. The Respondent No. 2's queries in the communications sent to AMC as reflected in the reply of AMC on page 50 of the compilation of SCA 3622 of 2011 needs to be set out as under:
"The AMC has also not offered equal value land in exchange of the Defence land which is an essential requirement as per policy of Govt. of India, Min. of Defence. The land as vaguely indicated in proposal deep inside from main road therefore value of this land is less than defence land. In this connection copy of Army Hqrs. New Delhi letter No. 57765/T/Q-31(Policy) dtd. 27/0/96 is sent herewith for your perusal please."
The said communication does not reflect that it was a policy decision of the Government of India as had it been so nothing prevented the respondent no. 2 from producing the same on record. Assuming without holding that the Union of India has decided to insist upon receiving land of equal or better value in exchange of land given for the development than also the prime considerations could not be value of land in case of Defense land or cantonment land as the prime consideration could only be the offered land's location and contiguousness with the their existing land.
This court is of the view that the respondent no.2 has failed in establishing prima-facie justification for putting barricades on the passage in question. The enigmatic omission on their part in taking action against or rather suffering use of Army Road by general public, school children, school buses school staff and others, in the close vicinity of their installations like ammunition dump, or CDS Depot, butchery etc and placing barricade on passage situate away from the installations, where admittedly no army installation of any kind exist, would certainly betray lack of any cogent and immediate reason for placing barricade only on that portion.
The respondent no. 2 has prima facie failed in explaining its own conduct of not closing the Army Road nearing its sensitive installations and blocking only a passage situated away from the installations which would not lend any credence to its claim of action taken pursuant to threat perception. The respondent no. 2 has not pointed out any special reasons for not blocking their own Army Road nearing the sensitive installations and blocking passage far away from it.
The respondent no. 2 has failed in indicating any justification as to how their concern and consciences for security would be satisfied by allowing passage to pedestrians, motorcyclist and other two wheelers, without any physical checking and how the passing of four wheelers would jeopardize security of the area. This court is not to question army's wisdom on this aspect but it would also not absolve army of its constitutional obligations to explain its apparently queer action with cogent and germane reasons with specific averments made on oath in affidavit filed by responsible officer especially when citizens have approached the court under article 226 challenging its action. It has been submitted by the advocate for the petitioners that if the barricade is removed than school going people also need not use the Army Road for reaching to school. Though as on date it has not been blocked in any manner.
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.
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.
Registry is directed to keep the copy of this order in each matter.
(S.R.BRAHMBHATT, J.) pallav Top