Karnataka High Court
H.V. Srinivas And Others vs Air Force Station, Jalahalli, ... on 24 July, 2001
Equivalent citations: AIR2001KANT479, ILR2001KAR4136, 2001(5)KARLJ527, AIR 2001 KARNATAKA 479, 2002 AIR - KANT. H. C. R. 713, (2001) ILR (KANT) (2) 4136, (2001) 5 KANT LJ 527
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT
The Court
1. This appeal is filed by the plaintiffs. Plaintiffs filed the suit against the defendant for a judgment and decree to restrain the defendant permanently from interfering with the plaintiffs lawful possession of the suit property. The suit property is 24 acres of land situated in Sy. No. 43 of Jarakbande Kaaval, Yelahanka Hobli, Bangalore North Taluk. Ac-
cording to the plaint averments, plaintiffs are the joint owners of the suit property and that they are enjoying the property as its owners. With an intention to protect their property, plaintiffs started putting up of compound in or about June 1994. Defendant did not allow the plaintiffs to protect their property by putting up a compound. Therefore, the plaintiffs filed the suit. Defendant filed a detailed written statement contending that plaintiffs are not in possession of the same and therefore they cannot be permitted to put up compound. According to the defendant, defendant is in possession of the property since 1941 and that Sy. No. 43 is situated adjacent to long firing range established by the air force personnel for imparting training. According to the defendant, suit property is within the effective danger zone. It is also stated that Sy. No. 43 situated within a distance of 800 yards from the Firing Butt and the effective area comes within the effective area of 200 yards from the Firing Butt. According to the defendant, as per para 7 of the Ground Range Regulations, Sy. No. 43 falls in the center of the effective danger zone. Defendant also rely upon a notification issued under Section 9 of the Manoeuvres, Field Firing and Artillery Practice Act, 1938 (hereinafter refer to as 'the Act'). According to this notification, Sy. No. 43 continues to be in danger zone till 1998. Therefore, defendant stated that they are taking necessary steps to acquire the land.
2. Based on the above pleadings, Trial Court has framed the following issues:
1. Whether the plaintiffs prove that they are in lawful possession of the plaint schedule property?
2. Whether the plaintiffs prove interference in the enjoyment of the property?
3. What decree or order?
3. After framing of the issues and on appreciation of evidence, the Trial Court has dismissed the suit on the ground that the plaintiffs were not in lawful possession of the property. Against the said judgment and decree, present appeal is filed.
4. I have heard the learned Counsel for the appellants as well as the Central Government Standing Counsel for the respondent.
5. After hearing the Counsel, the only point that arises for the determination of this Court is: "Whether the plaintiffs can be prevented from making use of their own property for ever based on the notification issued under Section 9(1) of the Manoeuvres, Field Firing and Artillery Practice Act, 1938?"
6. Defendant has not denied the ownership of the plaintiffs. Defendant, in other words, admitted the plaintiffs' ownership in regard to the suit property. The only contention of the defendant is that the land is in their actual possession pursuant to the notification issued by the Government. The plaintiffs have produced the R.T.C. extract. According to these R.T.C. extracts, plaintiffs are in possession of the property. But the Trial Court has disbelieved the R.T.C. extracts in view of Ex. D. 1. As per Ex. D. 2, plaintiffs have been prevented from putting up a com-
pound. Defendant has pleaded that he is in possession of the property pursuant to a notification issued by the Government on 30-3-1988 under Section 9(1) of the Act as per Ex. D. 4. Plaintiffs have not disputed the issuance of the said notification. What has been disputed by the plaintiffs is that based on the said notification, the defendant cannot claim possession or prevent the plaintiffs from putting up any compound or using their own property. Section 9 of the Act reads as hereunder:
"9. Power of State Government to authorise field firing and artillery practice.--(1) The (State Government) may, by notification, in the local Official Gazette, define any area as an area within which for a specific term of years the carrying out periodically of field firing and artillery practice may be authorised.
(2) The (State Government) may, by notification in the local Official Gazette, authorize the carrying out of field firing and artillery practice through a notified area or any specified part thereof during any period or periods specified in the notification.
(3) Before any notification under sub-section (2) is issued, the (State Government) shall publish notice of its intention to issue such notification as early as, possible in advance of the issue of the notification, and no such notification shall be issued until the expiry of two months from the date of the first publication of the notice in the local Official Gazette.
(4) The notice required by sub-section (3) shall be given by publication in the local Official Gazette and shall also be given throughout the notified area by publication, in some newspaper circulating in and in the language commonly understood in that area and by beat of drum and by affixation in all prominent places of copies of the said notice in the language of the locality and in such other manner as may be prescribed by rules made under Section 13 and shall be repeated by like publication one week as nearly as may be before the commencement of the period or of each period specified in the notification;
Provided that the fact of the said beat of drum and affixation shall be verified in writing by one headman and two other literate inhabitants of the locality and provided further that such notice by the beat of drum shall be given seven and two days as nearly as may be before the commencement of such field firing and artillery practice".
In the preamble of the Act objects and reasons are also furnished. It is stated that the Act has been brought into to maintain efficiency of the army.
"To maintain the efficiency of the army it is necessary in India, as in every other country, to hold manoeuvres and to practice firing in open country from time to time. Manoeuvres take place over large areas and should preferably be held in different localities every year. Firing practice is of two kinds, either with artillery or with rifles or machine-guns. The latter may be sub-divided again into firing at targets on a rifle range and field firing or practice in the open country under conditions similar to those of war. Manoeuvres, artillery practice and field firing, all involve some invasion of private rights and a certain amount of damage to private property, because sufficient waste land for these purposes does not exist within reach of cantonments. It follows also that, in the interests of their safety, it may be necessary to exclude the owners of the land from it for short periods during such operations".
From this it is clear that for the benefit of the State Government, for the practice of firing and artillery, any land can be notified about the intention of the Government to make use of the land for field firing and artillery practice, during any period or periods specified in the notification. Proviso to Section 9 of the Act also says how the notified land can be made use of before practising fire and artillery practice. The purpose of notifying the land under Section 9 of the Act by declaring it as a danger zone, is to avoid any casualty to all persons and domestic animals during the times when the discharge of lethal missiles is taking place or there is danger to life or health. So, under the provisions of the Act, by notifying the general public by beat of drums and also by means of affixture notifying the general public about the intention of the defendant to make use of the land situated in danger zone, to prevent any casualty to the life of a person or domestic animal during the course of the practice. By making use of the notification under Section 9 of the Act, defendant cannot prevent the lawful owners of the property or land either to make use of for cultivation or for any other purpose. Therefore, there cannot be any objection of the defendant to enclose the land in Sy. No. 43 by the plaintiffs by putting a compound at their cost since the land in question is not acquired by the defendant. By virtue of the notification, during the course of the practice of field firing and artillery, plaintiffs or anybody claiming under them are prohibited from enjoying the property. But there is no prohibition for the plaintiffs to construct compound and the defendants cannot object for the same.
7. Defendant claims that he is in possession of the entire extent of land in Sy. No. 43 pursuant to the notification issued under Section 9 of the Act. As discussed earlier, defendant cannot claim exclusive possession of the property as they can at best make use of the land for the field practice purpose. Except during the course of the practice, defendant cannot claim any right over the land. It is not the case of the defendant that Firing Butt is situated within the suit property and that the construction of a compound will come in the way of field practice of the defendant. As a matter of fact, if the compound is constructed, it will be a sort of protection for the defendant as the animals or persons cannot enter into the suit land. Therefore, the Trial Court without considering these aspects of the matter has dismissed the suit of the plaintiff.
8. From looking into the documents produced by the parties it is seen that there is proposal to acquire the property by the defendant. This clearly shows the ownership of the property by the plaintiff. When the plaintiffs are the owners of the property, they cannot be prevented from making use of their own property except during the course of the field practice. Therefore, the injunction as prayed for by the plaintiffs cannot be granted in toto. However, by putting reasonable restrictions in making use of the schedule property by the defendant pursuant to the notification issued under Section 9 of the Act, defendant is liable to be restrained from interfering with the possession of the suit property by the plaintiffs or in obstructing the plaintiffs to put up compound.
9. Accordingly, the appeal is allowed in part. Judgment and decree of the Trial Court is hereby set aside and the suit of the plaintiffs is decreed, thereby restraining the defendant from interfering with putting up a compound by the plaintiffs and also enjoying the suit schedule property at all times except during the course of the practice of field firing and artillery practice and the defendant shall not be prevented from practising the field firing and artillery practice as long as notification under Section 9 of the Act is in force. Parties to bear their own costs.