Karnataka High Court
The Union Of India vs Bangalore North Taluk Public ... on 6 August, 2020
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.F.A.No.493/2003
BETWEEN
1. THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY
MINISTRY OF DEFENCE
NEW DELHI - 110 001.
2. THE AIR OFFICER COMMANDING
AIR FORCE STATION
JALAHALLI
BANGALORE - 560 015.
..APPELLANTS
(BY SRI PRADEEP SINGH, CGC (EARLIER))
AND
1. BANGALORE NORTH TALUK
PUBLIC GREIVANCES COMMITTEE
YELHANKA P.O. BANGALORE
REPRESENTED BY ITS PRESIDENT
SRI C SUBBANNA.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
CHIEF SECRETARY
VIDHANA SOUDHA
BANGALORE - 560 001.
2
3. GEETHA CHERIAN
W/O CHERIAN PHILIP
R/AT No.3404
9TH K MAIN ROAD
VIJAYANAGAR
BANGALORE -40.
4. K .G. THOMAS
5. P.P.PHILIP
S/O K C PHILIP
6. VERGHESE MATHEWS
S/O MATHEWS
7. SHIBA BABY
8. SHRI CHERIAN PHILIP
S/O K C PHILIP.
RESPONDENTS 3 TO 7 & 8
R/AT No.19
GUNI AGRAHARA VILLAGE
HESSARAGATTA HOBLI
BANGALORE .
..RESPONDENTS
(BY SRI K ARUN KUMAR, SENIOR ADVOCATE FOR R-1
SMT. JYOTHI BHAT, HCGP FOR R-2
NOTICE TO R-3 TO R-8 HELD SUFFICIENT
V/O DTD. 28.02.2011)
THIS RFA IS FILED UNDER ORDER 41 RULE 5 CPC
READ WITH SECTION 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 01.02.2003 PASSED IN O.S.
No.6504/1996 ON THE FILE OF THE XXVII ADDITIONAL
CITY CIVIL JUDGE, BANGALORE (CCH No.9), PARTLY
DECREEING THE SUIT FOR DECLARATION AND
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PERMANENT INJUNCTION AND REJECTING THE SUIT FOR
MANDATORY INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED ON
31.10.2019 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING.
JUDGMENT
This appeal is directed against the Judgment and Decree dated 01.02.2003 passed in O.S. No.6504/1996 by the XXVII Additional City Civil Judge, Bangalore (CCH No.9), wherein suit of the plaintiffs came to be decreed in part, declaring that disputed road (stretch of road between Gangamma Circle and the point called Zam-Zam) is a public road forming part of Bangalore-Doddaballapur road starting from Yeshwanthapura passing through Air Force Ground Training Unit branching at Zam-Zam point towards Yelahanka and Hesarghatta. Consequently, Defendants Nos.1 and 3 are also restrained by an order of permanent injunction from imposing any kind of restrictions on the right of user of the disputed road 4 by the plaintiffs and the members of the public except in accordance with law. The prayer for mandatory injunction that was sought for directing defendant No.3 for the removal of such structures already erected came to be rejected.
2. The appeal is preferred by defendant Nos. 1 and 3 against the portion of the judgment and decree passed in favour of the plaintiffs. The plaintiffs have not challenged the decree passed to the extent of dismissal.
3. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their nomenclature as held by them before the trial court.
4. The suit in O.S.No.6504/1996 was filed for the relief of:
"(A) Declaration that the stretch of the road lying between Gangamma Circle and a 5 point called Zam Zam, either side of which the third defendant's training camp is situated, being a part of the public road starting from Yeshwanthapura passing through the Air Force ground training unit (third defendant) branching off at Zam Zam towards Yelahanka and Hesaraghatta, is a public road and a high way under the common law and that as a public road the plaintiff as well as other members of the public have a right to pass and repass and make use of it through out the day and night.
(B) Permanent injunction restraining the defendants from interfering with the right of user of the members of the plaintiff Association as well as the members of the public, either by physical restraint or by erecting any type of structures or barriers such as gates, check posts, road blocks etc., and mandatorily direct the removal of such structures already erected.
(C) Mandatory injunction directing the 3rd defendant for the removal of such structures already erected."
5. 1st plaintiff claims that the suit was filed in a representative capacity. The necessary formalities as per Order 1 Rule 8 CPC were complied with. Six other persons came forward to join the proceedings as additional plaintiffs.
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6. The suit is filed on 17.09.96 against:
(1) Union of India represented by its Secretary, Ministry of Defence, New Delhi -110001;
(2) State of Karnataka represented by its Chief Secretary, Vidhana Soudha, Bangalore;
(3) The Air Officer Commanding, Air Force Station, Jalahalli, Bangalore -
560 015.
7. The defendant Nos. 1 and 3 filed their statement but defendant No.2 did not. 1st plaintiff is an Association of Bangalore North Taluk, Yelahanka, Bangalore represented by its Office bearers.
8. 1st Plaintiff claims to be a Social Welfare Association of persons belonging to Bangalore North Taluk, Yelahanka. It is engaged in carrying out its primary objects of redressal of grievances of public and also catering to the welfare of its members and the residents of Bangalore North Taluk. 1st Plaintiff is a 7 registered society under the Society's Registration Act, having its office bearers and one Subbanna was the President at the time of filing of the suit.
9. In substance the case of the plaintiffs is that they are interested in a strip of road branching of from the National Highway No.4 at Yeshwanthapur in Bangalore North Taluk, which passes through Yeshwanthapur Extension, Gokul Layout, HMT Factory; intersection of Subrato Mukherjee Road, Air Force Station, Jalahalli East and proceeding towards Yelahanka on National Highway No.7 at a distance beyond Air Force Ground Training Camp, a branch of the road leads towards Hesarghatta at Jalahalli East. This point is known and identified as ' Zam-Zam' point. The said point converges many villages. About 2 Kms away from the road towards the City is another point known as 'Gangamma Circle'. 8
10. Air Force Ground Training Camp is spread on both the sides of the road. The stretch of the road between Gangamma Circle and Zam-Zam point is the subject matter in the suit. For the sake of convenience, the said road is hereinafter referred as 'disputed road'.
11. The suit was filed on 17.9.1996 claiming that the disputed road is the only access to the residents of the villages to go towards the City. The said road has been in existence for about more than a century. There is no alternative road to the residents to move towards or away from the City. The pedestrians and vehicles both public and private use the said road without any alternative. It is further claimed that the usage of road has never caused any impediment to anybody.
12. It is stated that the Government initiated acquisition proceedings under the Land Acquisition 9 Act, regarding the acquisition of land on 10.6.1971 gazetted on 24.6.1971 thereby notified and declared that the lands consisting of 38 survey Numbers of Singapura village, Bangalore North Taluk were needed for public purpose that is to the Defence department for its Air Force Station, Jalahalli. After the acquisition of the said land, possession was handed over by the State Government to the Defence Department. Acquisition of land by the Government is not disputed.
13. The said land is lying on both the sides of the disputed road. The use of the disputed road by the public was being carried on without any interruption. The Air Force Station Jalahalli, established a Training Camp in the acquired lands. In order to protect their properties and equipments they raised granite walls on either side of the disputed road. At that time, writ petitions were filed before the High Court of Karnataka, questioning the act of Air Force Authorities 10 as it amounted to interference with the rights of the public. The proceedings in this connection reached the stage of appeal in Writ Appeal No. 1486/1992 and the matter was settled as recorded in the said proceedings. The Air Force station ensured the safety and security of the properties and installation inside its camp area by raising construction of high granite wall. Further, the interests of trainees and personnel also taken care from the hazards of road. The additional Sentry posts are maintained at the entrance of the camp on either side of the disputed road. Thus, proper vigil is maintained.
14. The disputed road with a width of 20 feet and road margin on both the sides is asphalted. Meanwhile, certain acts were conducted by 3rd defendant Air Force authority. Among them, following were included:
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(i) High granite walls of the camp were extended on the road margin for about 15 feet on either side of the disputed road;
(ii) Four road humps were erected to check the speed of the vehicle using disputed road to protect the inmates of the camp;
(iii) two Sentry posts were established on the disputed road margin adjoining the camp to check the movement of pedestrians and vehicles on the disputed road;
(iv) check gates were erected to check the progress of traffic on the disputed road:
(v) Sentry post was constructed in the middle of the road near Gangamma Circle;
(vi) Sign post indicating "NO THOROUGH FARE ' was also hoisted at zam-zam point.
15. Thus, the use of the road was allowed only by sufferance to the public. The plaintiffs also claim 12 series of acts done by 3rd defendant abridged the rights of public and road users. Further the iconic movement of checking the public and vehicles on the disputed road were being made indiscriminately. The 3rd defendant regularly started interfering with the rights of its holders over disputed road. There were stoppage of carts, pedestrians and the vehicles from 7.30 a.m. to 8.15 a.m. and 1.30 p.m. to 2.15 p.m. and also between 10.15 p.m. to 11.15 p.m. which were designated as the changing time for guards. Whenever, the Military higher-ups visited the Air Force Station the use of disputed road for public for a period upto 10 hours was totally prohibited. Through advertisements in the newspapers notifying of the closure of road were also made. The school and college going students factory workers of BEL, HAL, HMT and many industrial estates elsewhere and wage earners working in the city had to travel through the 13 disputed road. Sick persons are very much dependant on the said road to visit the hospital and to come back. Persons with grievances to go to police station also passed through the disputed road. Further, milk vendors, vegetable vendors, firewood suppliers, fodder vendors, general traders for their livelihood have to reach the city through the disputed road.
16. Even the buses with stage carriage permit use the said road. Quarries in Bettahalli village covering employment to 2000 people, Brick Kilns employing over 5,000 workers directly depended on the smooth use of the disputed road. Movement of goods, materials, ambulance depend on the road. The acts of 3rd defendant interfering with the above people and process. Very often the workers have to arrive at the working place late and that resulted in various difficulty to them though they were at no fault. jeopardy to them.
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17. 2nd defendant -State of Karnataka has provided about 4000 house sites in the area covering the disputed road to the siteless and economically weaker sections of the society on the place surrounding zam- zam point, Bettahalli, Kuvempunagar, Singapura. The disputed road is stated to be the only access to the allottees of the site.
18. The road was being used not only from recent days, but it was being used as conveyance from the days earlier to the acquisition of land in the year 1971.
19. The checks gradually and steadily were increased by 3rd defendant thereby encroached the rights of citizens what initially commenced as maintenance of road, started tending towards its closure to the public. The residents of the village made several representations to the defendants, the 15 Governor, and to those authorities who are connected to it.
20. The plaintiffs also claim that matter was also raised in Legislature during its Session. None of the representations made by the people yielded any fruits. The acts of 3rd defendant were self explanatory in as much as they focused on deprival of road to the public.
21. Defendant Nos.1 and 2 are in collusion with defendant No.3. Defendant No.2 being the custodian of the public property who has to ensure that utilities are to be used by the public did not bother to look into the matter towards the direction of redressal. Defendant No.3 or any other authority or persons are not having right to take away the rights of the plaintiffs on the said road. The high granite walls are covered with broken glass pieces at top and entrances 16 are managed by armed persons. In none of the military establishments like Transport, Training Wing Yelahanka, Headquarters Training Command, Hebbal, Command Hospital on HAL (Airport) Road, Air Force Unit occupying on both Subrato Mukherjee road there are any obstructions to the public from using the public road.
22. The 3rd defendant never showed interest to maintain good relations through non interfering with the movement of public and vehicles on the said disputed road. It was in this connection, Writ Petition No.16193/1983 was filed before this Court, seeking writ of mandamus against all the defendants directing them not to interfere with the fundamental rights of the residents of the villages in particular and of the traveling public in general. In the said petition, 3rd defendant raised various questions regarding the said 17 road. The said petition was disposed of on 04.01.1995 holding that:
"When such serious questions are raised, it will not be possible for the court to decide in one way or the other of the rights of the parties except after investigation and factual position. Infact that course can be adopted by the parties concerned by resorting to proceeding before a Civil Court and establish their respective rights."
23. Thus, it was inevitable for the 1st plaintiff- association to file the suit to ensure all the disputed questions are adjudicated.
24. It is also claimed that during the pendency of the writ petition there was an interim order regarding use and enjoyment of the disputed road and the same protected the rights of the public including the plaintiffs. But off late various acts of causing interference were activated by the 3rd defendant 18 prompting the filing of the suit. In this connection, on 28.3.1996, plaintiff got issued the legal notice under Section 80(1) of CPC to the defendants.
25. Meanwhile, defendant No.3 commenced the construction of a gate with grilled shutters to lock across the road at Zam-Zam point to prevent the flow of traffic. The plaintiffs further claimed that there are many areas and places wherein there will be grinding halt for the necessary and several activities of public and residents in the matter of conveyance.
26. The plaintiffs claim the cause of action to the suit arose on 04-01-1995 when this Court disposed of the writ petition and when the 3rd defendant imposed restrictions in the matter of using of the road.
27. As stated above, defendant Nos. 1 and 3 have filed the written statements and contended that suit is not maintainable, alternative access is available, 19 lands in question were acquired by the Government long back, Air Force authorities were given possession of the entire land including subject land. Apart from the disputed road, there are other roads intersecting and connecting Gangamma circle.
28. The disputed road is not the only available access. There cannot be any entry for private person to defence area which are existing over the lands in question. The training establishment is the back bone of security. Any kind of spying would result in great loss. Plaintiffs have no right to assert right over the disputed road. The armed officials have to look after peace, security or non interference. It is claimed that 2nd defendant-Government has not declared the disputed road as the public road. There is no exclusion of disputed road from the acquired land.
29. The disputed road is the part of the property of the defence establishment. The security of the area 20 was being maintained from 1941. At no point of time, the disputed road was either highway or pucca road. The maintenance of the disputed road is by Air Force authorities. The establishment of police station is at the instance of defendant No.3. Any accommodation offered for interim period does not vest full right in respect of disputed road. Even if the road is closed, public cannot object. There is no right as the matter of fact available to the plaintiffs or the general public over the disputed road.
30. The defendant Nos.1 and 3 questioned the legality of the claim of the plaintiffs over the disputed road. The plaintiffs cannot claim the regular easementary and other related rights over the disputed road. It is further contended that the plaintiffs have no right to deny the title of the defendant No.3. It is not the question of obstruction by the defendant No.3. On the other hand, the 21 plaintiffs have no right over the road area in dispute. The claim made by the plaintiffs are all reiterated in the arguments.
31. The learned Judge framed the following issues:
1. Whether the plaintiffs prove that the stretch of the road lying between Gangamma Circle and the point called Zam Zam is a part of public road starting from Yeshwanthapur passing through the Air Force Ground Training Unit?
2. Whether the plaintiffs prove that the defendants are interfering with the right of user of members of plaintiff's Association as alleged?
3. Whether the plaintiffs are entitled to declaration as sought for?
4. Whether the plaintiffs are entitled to a decree of permanent injunction as sought for?22
32. The evidence on behalf of the plaintiffs and respondents adduced and produced before the trial court are as under:
Oral and documentary evidence on behalf of plaintiffs:
PW-1- Shri D.Jayaramaiah, PW-2- Shri E.Krishnappa, PW-3- Shri K.K.Mathukutty Vaidhyan, PW-4- Shri Yellappa, PW-5- Shri Thimmaiah, PW-6- Shri S Yellappa, PW-7- Shri M.A.Muniraju Ex.P1 Copy of the communication dt:27.8.1983 Ex.P2 Letter dt:27.8.1983.
Ex.P3 Sketch
Ex.P4 Xerox copy of the Gazette
Notification dt:14.6.1971.
Ex.P5 Certificate dated 31.7.1982
issued by Doddabettahalli Village
Panchayath
Ex.P6 Letter dated 7.3.1984
Ex.P7 Letter dated 28.2.1984
Ex.P8 Xerox copy of the then Mysore
Gazette Notification dated
23
1.8.1941.
Ex.P9 Road map
Ex.P10 -
Ex.P11 Xerox copies of the photographs
Ex.P12 Xerox copy of the sketch
Ex.P13 News items:
Dated 25.7.1982 (The Times of
Deccan)
Dated 19.7.1982 (The Hindu)
Dated 22.6.1982 (Deccan
Herald)
Dated 29.7.1982 (The Indian
Express)
Dated 30.7.1982
(The Indian Express)
(xeroxed pm the same sheet)
Ex.P14 Letter dated 25.7.1982
Ex.P15 Letter dated 11.3.1983
Ex.P16 Typed copy of the Memorandum
of W.P.No.16193/1983 with
enclosures
Ex.P17 Xerox copy of the order in
W.P.No.17359/1983
Ex.P18 Xerox copy of the order in
W.P.Nos.16193 and 17359/1983.
Ex.P19 Copy of the legal notice
dt:28.3.1996.
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Ex.P20 Singapura village map
Ex.P21 Jarakabandekaval village map
Ex.P22 Chikkabettahalli village map
Ex.P23 Mowje Doddabettahalli village
map
Ex.P24 Attur village map
Ex.P25 Certified Xerox copy of the order
In W.A.1486/1982.
Ex.P26 Certified Xerox copy of the order
In W.A.1486/1982.
Oral and documentary evidence on behalf of defendants:
DW-1- Roopesh Kumar Dubey
Ex.D1 Authorisation letter
Ex.D2 Xerox copy of the compromise
petition
Ex.D3 Xerox copy of the order sheet.
33. On the basis of the above oral and documentary evidence, the trial Judge answered issue Nos.1 and 2 in the affirmative and finally decreed the suit in part 25 as mentioned above. The same is challenged by defendants 1 and 3 in this appeal.
34. Learned counsel for appellants Sri. Pradeep Singh submitted that the acquisition of the entire land was made to allot the schedule land for the benefit of defendant No.3 in the interest of the Nation.
Defendant No.3 has all the rights and authority to own, possess and enjoy the total land including the disputed road, keeping in mind the confidentiality, safety, maintenance of defence secrecy and defendant No.3 is entitled to exclude enlarged use of the disputed road by the private persons which includes the plaintiffs and is a question of national interest.
35. The learned counsel for appellants submits that the space of disputed road is totally beyond the reach or control or availability to the plaintiffs or any other 26 individual. The existence of road even earlier to 1900 does not confer any vested rights in the same to plaintiffs or any other persons. Defendant No.3 may not be placed at par with that of private property owners in the matter of easementary right or other rights. Learned counsel would further submit that the trial judge erred in overlooking the principles applicable regarding the sensitivity and extra ordinary circumstances. Learned counsel would further submit that safety and security of the Country stands at a higher pedestal.
36. It was further submitted that the responsibility of defendant No.3 includes maintaining of the aerial space in the best interest of the Country and keeping Sovereignty and integrity of India. More particularly, considering the dangerous acts which are carried on by different Terrorist organizations in the past. To facilitate proper administration and welfare of the 27 department to carryout its object, defendant No.3 is to be housed in a safe, secured and non interfering area. In case the decree granted by the trial court is continued, the very functioning of defendant No.3 will be jeopardized. The maintenance of a defence establishment cannot be placed at par with private or other establishment of the public.
37. Sri K.Arun Kumar, learned Senior counsel for respondent No.1/1st plaintiff would submit that the disputed road is the subject matter and that the plaintiffs, public and other users who are in thousands used the same for commuting to reach their working place and back home. Learned counsel would further submit the documents/exhibits marked clearly goes to show that the disputed road was in existence right from the days earlier to 1940's and that the right of road is statutory, by prescription, customary and a vested one. Defendant No.3 who is the beneficiary of 28 the acquisition of land as stated cannot deprive the right of the plaintiffs to use the road, on the ground that it is coming under defence area. Further the defendant No.1 and 3 are not having locus standi to interfere with the use of the disputed road by the plaintiffs including rights of commuters and to snatch their valuable rights.
38. The plaintiffs are fully aware that the disputed road has been used and enjoyed by them and other public consisting of various denomination and it is indispensable for them to carryout the activities of life with only with the accommodation of the road. It was also submitted that the users of the road are peace loving people and they are not going to cause any hindrance to any of the activities of the defendant No.3. Further, the records themselves reflect that for decades earlier grant of land to defendant No.1 the use of road was enjoyed by the residents and all the 29 respective denominations of the society and if it is deprived, the plaintiffs would suffer devastating loss.
39. 1st plaintiff who claims to be a service organization at Yelahanka, Bengaluru North Taluk, filed the suit claiming that it is in the interest of public. The subject matter is the Road stated in the sketch Ex.P-3 and the same has to be kept open to the public and defendant No.3 has no right to prevent the public which includes the plaintiffs from using the same nor defendant No.3 is entitled to raise any structure or installations which may impair the rights of the plaintiffs. However, the ownership of the entire land in favour of defendant No.3 is not disputed. But the controversy is regarding the uses and restrictions of the said road.
40. Defendant No.1 is the Union of India, Defendant No.2 is the State of Karnataka and defendant No.3 is 30 the Air Officer, Commanding, Air Force Station, Jalahalli, Bengaluru. Defendant No.3-the Air Officer Commanding, Air Force Station admittedly is the owner of the total property which includes the disputed road and opposes the claim of the plaintiffs, rather term it as interference in the matters of security of the Country and invasion to safety of the country.
41. The documents filed by the plaintiffs nodoubt establish the existence of road. Both oral and documentary evidence on hand shows existence of high granite wall about 15 feet on either side of road, four road humps, two Sentry posts to check movement of pedestrians, check gate at three places, Sentry post near Gangamma Circle Signal, notice indicating "No thorough fare". The said acts of the defendant No.3 are claimed to be abridgment of rights of the public and further moving towards deprival. The 31 residents of the village are at the mercy of the defendant No.3-Air force Station even to go to the Police Station and Gangamma Gudi.
42. It is submitted by the learned counsel for appellants that the Police Station stated above is coming under the State Government and the same is already shifted. It was also submitted that the Indian Air Force Commanding Station was started at Bangalore because of its suitability in all segments.
43. The list of villages enjoying the utility of the disputed road are many and few among them are:
Singapura, Kuvempu Nagar, Vinayak Nagar, Vidyaranyapura, Doddabommasandra, Ramachandra pura. The walls are installed in order to prevent intruders. The disputed road is between Gangamma Circle to Zam-Zam point with 1.5 kilometers within the Air Force Station and it leads to Doddaballapur, 32 connecting NH-7. It is undisputed that there is another road, but it is a longer one than the disputed road stretch.
44. In this connection, writ petition Nos.17359 and 16193/1983 were filed but on 04.01.1995 they were dismissed stating that such matter regarding road do not come within the purview of writ petitions. Meanwhile, writ appeal in W.A.NO.1486/1982 preferred against the order dated 19-07-1982 passed in W.P.No.19902/1981 came to be allowed on 25-8-1982 in view of the amicable settlement by setting aside the order dated 19.07-1982 and permitting the petitioner therein to withdraw the writ petition. However, O.S.NO.6310/1980 filed by Dodda Bettahalli Group Panchayath came to be dismissed on 28-08-1982.
45. The oral or documentary evidence produced by the parties reiterate their respective claims and 33 contention. Further, in the facts and circumstances, the nature of the claims and contention do not depend on admissions, contradictions and corroboration between oral and documentary evidence. Finally, the matter boils down to whether the contention by defendant No.3 has to be considered in the larger interest of the Nation. Facts are also to be considered in their own unique manner.
46. In this appeal, the Commissioner was appointed for conducting spot inspection and Committee was also constituted by this Court as per the order dated 04.11.2015 and the Committee has filed its report.
47. The details available through the inspection by the Commissioner includes the following:
Towards the left side of Gangamma gate an alternative road is present and the same passes through Kuvempunagar, Singapura, Vijayanagar, Varadarajanagar, Vinayakanagar, M.S. Palya and 34 reaches Zam-Zam Point. The said road has a width of 20 to 30 feet.
Para No.4 of the said report states:
"Vehicles can easily pass through. The court commissioner in his report has shown the existence of the road."
48. The Committee that was constituted by this Court in its order dated 04.11.2015 regarding alternative road has suggested as under:
"9. Suggested Alternate Roads:There are four suggested alternate roads. All the four alternate roads were inspected by the committee on 28 Dec 15 and on 21 Jan 2016. Their details are as under:
Alternate Road No.1: This road passes through CWE Office, Kuvempunagar and Singapura Village and reaches Zam Zam Point. The length of the road is 4.05 kms and the width varies form 16 ft to 40 ft.
The entire stretch of the road is asphalted and is mostly two lanes except in some places where it is single lane. There is no footpath or median in the road. There are 60 intersections. Apart from this, bottlenecks exist in civil populated areas at four locations. BMTC plies 48 bus trips daily on this road.
However, during the discussions it was pointed out that this road exists on the reserved forest land and requires the de-notification of this land before using. Since this point was not mentioned in the 35 Court order issued by the Hon'ble Court, hence it is not considered by the committee.
20th of January 2016 - The chairman along with all the members of the committee met at Jalahalli Traffic Police station and inspected the other three suggested alternative roads. The details are as under:
Alternative Road No.2: This road passes through Ramachandrapura village and Vidyaranyapura and reaches Zam Zam point. The length of the road is 5.20 kms and the width varies from 20 ft to 45 ft.
The road is mostly tow lanes with many stretches being single lane. There are 77 BMTC bus trips daily on this road.
Alternative Road No.3: This road starts from BEL Circle and merges with alternate road No.2 after about 4 kms and reaches Zam Zam point via Nanjappa Circle. The length of the road is 8.5 kms and the width varies from 20 ft to 45 ft at few points. The major part of the road is two lanes and rest is single lane. There are 1260 BMTC bus trips daily on this road.
Alternative Road No.4: This road starts from Gangamma Circle viz Abbigere and merges with alternate road No.1 and after 3kms joins Singapura village and reaches Zam Zam point. The length of the road is 6 kms and the width varies from 20 ft to 60 ft at a few points. The road is a mix of two and single lane width. There are no BMTC buses plying on this road. A Google map showing the disputed road the and above four suggested alternate roads is at Annexure-E."
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49. The above suggestion made things abundantly clear to the effect that the plaintiffs are not depending on the disputed road as a sole one and an absolute necessity without an alternative one.
50. It was submitted that the road was maintained by PWD. However, there was no specific submission by the learned Government Pleader. The claim of the plaintiffs is that the disputed road is in existence for over a century. The road is identified in documents and the Government records and the same is beneficial to the use of thousands of pedestrians, vehicle riders, drivers etc.
51. Ex.P4 is Xerox copy of the Gazette Notification dated 24.6.1971. Ex.P6 is the letter of Executive Engineer, PWD dated 07.03.84 which reflects debiting of expenditure of Rs.1,48,492.17 for the road. The said letter is addressed to the President of 1st 37 plaintiff's Association. However, whether the road is maintained by the Government through PWD or otherwise makes little impact on the case on hand.
52. The State Government initiated the acquisition proceedings in the year 1977. The lands covered in all 38 survey numbers were acquired for public purpose i.e. to be handed over to defendant No.3. The Gazette Notification in this connection is dated 24.6.1971. The acquired land as revealed in the evidence both documentary and oral, Training Center was established by defendant No.3 and a granite wall was installed by it as a protective measure. The plaintiffs claim that there is a collusion between the defendant Nos.1 and 2 in favour of defendant No.3. Defendant No.3 contends that the suit is barred by doctrine of resjudicata by virtue of compromise in O.S.No.6310/1980. It is in this connection, the fact has to be considered that the concession or 38 compromise that came to be reached was in a private suit. The present one is a representative suit which has larger domain in coverage and any concession accorded by the defendants or the plaintiff when it is questioned, it should be to the satisfaction of the court that the scope of consideration in the earlier suit is not similar to the present one.
53. On analysis of the scope of the earlier suit, it does not sink with the present suit O.S.No.6504/96.
54. The issues mainly in this case are the claim regarding the public road, resistance by defendant No.1, tenability of claim of user and competency of defendant No.3 to resist.
55. Whether there was or is the road from Gangamma Circle to Zam-Zam point covering a length of 1.5 kilometers. If the same was or is in existence, whether it is supported by oral evidence, custom and 39 also documents. Irrespective of the facts the defendant No.3 enjoys the special privilege or exemption to make the area of the road strictly reserved for them would be point that assumes significance.
56. Normally, right of passage or road and other incidental rights are established by certain factors like necessity, prescription, contractual or statutory. In this connection, the existence of the disputed road is spoken by all the plaintiff's witnesses and use of the same is not disputed by defendant Nos.1 and 3 through their contentions in written statement and by oral and documentary evidence. On analyzing the nature of right claimed by the plaintiff, it should be remembered that they are not claiming personal benefit or rights over property. Per contra, their grievance is that the plaintiffs and the other users of the road have fundamental right over the same and 40 they should be respected. The resistance by 3rd defendant is that the area of the road is out of bounds to the public.
57. In the normal course of events, there are other restrictions other than the right of easement by necessity is not available when there is an alternative access available, however inconvenient. Further easement of necessity is not available if the sought easement bifurcates the road into two parts to render them next to useless.
58. As per Ex.P-7 dated 28.02.1984 earlier old district board road had a length of 2.8 kilometers. In this connection, Ex.P8 is the notification dated 1.8.1941. It is also stated that the road passes through M/s. Garizon Engineers Officer, IAF Officers Mess, Canteen, Temple, Post Office, Bank, Shops, 41 Farm house dairy which are reflected by paper cuttings as per Ex.P-13.
59. The proceedings in the earlier suit and compromise entered into by the parties, besides the documents stated above establish the existence of road. However, defendant No.1 therein contends that accommodation was extended reluctantly. The circumstances now prevailing would suggest that it is highly risky and dangerous in case of relaxation to allow the entry of third parties and public to the safety of the sensitive installations.
60. Learned counsel for appellants relied upon the decision of the Apex Court, in the case of Sulochana Chandrakant Galandi Vs. Pune Municipal Transport and others - (2010) 8 Supreme Court Cases 467.
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61. The respondent-plaintiffs relied upon the decision in the case of Dr. Nitin G. Khot and others Vs. Station Commandant, Belgaum Cantonment, Belgaum and others - AIR 1998 Karnataka, wherein, case note is as under:
Constitution:- Fundamental Right - Violation of - Article 19(1)(d) of Constitution of India and Rules 5, 13(3)(i)(d) of Cantonment Rules - Whether there is violation of fundamental right guaranteed by Article 19(1)(d) of Constitution by closing road by military ? - Held, public roads cannot be termed to be in active occupation of Army - Land used for purposes of roads, therefore, cannot be termed to be Class 'A' land, authorizing Army Authorities to make regulations regarding its user - Rule 13(3)(i)(d) of Rules also provides that where roads, over which public have a right of way, traverse a holding, such roads should be excluded from holding, even if they are military roads - In presence of Rules 5 and 13 of Rules respondent authorities cannot claim exclusive right of manning managing and regulating control of roads allegedly belonging to them - Sub - rule (3) of Rule 14 clearly and unambiguously provides that lands in Class A(1) shall not be used or occupied for any purpose other than those stated in sub-rule (1)(i) of Rules 5 without previous sanction of Central Government - Roads in dispute are not being used for purposes specified in Rule 5(1)(i) of Rules- Mere fact that roads pass through Army areas or Cantonment Board would not change their nature authorizing Army Authorities to put restrictions resulting inconvenience to general public affecting 43 their fundamental right of freedom of passage as enshrined in Article 19(1)(d) of Constitution - Appeal allowed.
62. Here, it is necessary to mention Rules 3, 5, 13, of Cantonment Land Administration Rules, 1937 which are as under:
Rule 3 "3. General Land Register-(1) The Military Estates Officer shall prepare, in the form prescribed in Schedule I, a General Land Register of all lands in the Cantonment-
(a) inside bazars;and
(b) outside bazars.
(2) No addition or alteration shall be made in the General Land Register except with the previous sanction of the Central Government or such other authority as the Central Government may appoint for this purpose or in accordance with the provisions of rules 10 and 45.
Rule 5 "5. Class 'A' land.-- Class 'A' land shall be divided by the Central Government, or such authority as they may empower in this behalf, into the following sub-classes, namely:
(i) Class A(1) land which is actually used or occupied by the Military Authorities, for the 44 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".
(ii) Class A(2) land which is actually used or occupied by the Military Authorities, but to the use or occupation of which for any other purpose, except temporary, there exists specific military objections.
Rule 13 Schedules of Class-A land: (1) The military estate officer shall maintain plans and schedules of land in Class-A (1) and (2) for each Cantonment in which land is entrusted to his management.
(2) No alteration in the plans and schedules shall be made without the sanction of the Central Government;
(3) As soon as may be after the 1st April of each year and not later than 1st July, the Military Estate Officer shall submit a certificate, countersigned by the officer, Commanding Station, to the Central Government as to the correctness of the plans and the schedules of Class-A land, together with a report of any unauthorized structures or encroachment there on.
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Section 3 of the Cantonment Act, 2006, is as under:
"3. Definition of cantonments.--
(1) The Central Government may, by notification in the Official Gazette, declare any place or places along with boundaries in which any part of the Forces is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be a cantonment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment.
(2) The Central Government may, by a like notification, define the limits of any cantonment for the aforesaid purposes.
(3) When any place is declared a cantonment under sub-section (1), the Central Government shall constitute a Board within a period of one year in accordance with the provisions of this Act:
Provided that the Central Government may, for the reasons to be recorded in writing, extend the said period of one year for a further period of six months at a time:
Provided further that the Central Government may, until a Board is constituted, by order make necessary provisions for the efficient administration of the cantonment.46
(4) The Central Government may, by notification in the Official Gazette, direct that in any place declared a cantonment under sub-
section (1) the provisions of any enactment relating to local self-government other than this Act shall have effect only to such extent or subject to such modifications, or that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification.
Section 10 of Cantonment Act, 2006, pertains to Cantonment Board, which is as under:
"10. Cantonment Board.--
(1) For every cantonment there shall be a Cantonment Board.
(2) Every Board shall be deemed to be a municipality under clause (e) of article 243P of the Constitution for the purposes of--
(a)receiving grants and allocations; or
(b) implementing the Central Government schemes of social welfare, public health, hygiene, safety, water supply, sanitation, urban renewal and education.
63. The meaning and domain of cantonment does apply to private property or the property excluding 47 owned by an establishment coming under Central Government like the one in the instant case.
64. The scope of the suit to a considerable extent is not the determination of who is credible and untrustworthy, corroboration of documentary evidence to the oral evidence. It is rather deciding what stand or decision would be appropriate under a given situation. Thus, under the given set of circumstances and facts, whose claim or contention would be acceptable is the moot question when the usage of road comes to an end extinguishment does not require additional and alternative road.
65. The area wherein the rival claim are not falling under Cantonment Rules nor it is a case of dispute regarding road. The property exclusively fell within the ownership of the Air Force and the resistance by 48 the Air Force is on the ground of threat to security and privacy.
66. It is also brought to the notice of the court that the public who are being allowed to enter are being checked through the gates and checking point, but there is no verification of individual identity. At the same time, it is not a case wherein physical checking of the vehicles and persons are in practice. The bifurcation between the 'road' and 'the defence area' is a 'granite wall'. In this connection, the threat to security, breach of privacy and other large scale loss in case of emergency cannot be ruled out. It is also necessary to take note of various terrorists acts, including attack on Parliament on 13-12-2001, attack in Mumbai 26-11-2006 and also in Bangalore in the premises belonging to Indian Institute of Science on 28-12-2005.
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67. The preventive measures always lie in protecting the property otherwise, situation may become vulnerable. In the process, the term 'Cantonment area' cannot be equated with the exclusive property of the defence establishment.
68. The learned counsel for 1st plaintiff/respondent No.1 also relied on the decision in the case of Dilip S/o. Shankarrao Deshpande and others Vs. Executive Engineer, Lower Wena Project, Wardha and others reported in AIR 1993 Bombay 140, wherein para-9 reads as under:
"We are unable to accept these contentions because, as indicated buy us earlier, that the record does indicate that the car-track in question was in existence. Furthermore, in our opinion, Mr.Kaptan is fully justified in contending that in respect of the track, the procedure prescribed by Section 21 of the Land Revenue Code is necessary. In our considered judgment, even if in a given case, it was absolutely necessary to utilize the road in question, it would have been equally necessary for them to have safeguarded the rights of the petitioners and 50 not having done so, they have infringed upon the petitioners' right, thereby making it necessary for the grant of suitable relief."
The facts of the above case are not directly or indirectly applicable to the case on hand, as it is not in respect of independent or private area.
69. The learned counsel for 1st plaintiff/respondent No.1 also relied on the judgment rendered by the Apex Court in the case of Municipal Board, Manglaur vs. Mahadeoji Maharaj Civil Appeal No.841/1962 decided on 24.11.1964), wherein, Case Note is as under:
"Civil - injunction - Section 116 of Uttar Pradesh Municipalities Act, 1916 and Madras District Municipalities Act, 1884 - appellant proposed certain structure to constructed on land along side road - respondent (owner of land) sought injunction - road under management of appellant
- proposed construction not for maintenance of road - injunction to be granted."
The said decision is not applicable to the case on hand.
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70. The learned counsel for 1st plaintiff/1st respondent also relied on Section 5 of the Karnataka Traffic Control Act, 1960 which reads as under:
"5. Main roads- The State Government or any authority authorized in this behalf by the State Government may by notification or by the erection at suitable places of the appropriate traffic sign referred to in Part A of the First schedule, designate certain roads as main roads for the purposes of the regulations contained in the Second Schedule."
71. Whenever, individual interest is confronted to public interest, it is the public interest that has to be recognized and considered over the private or individual interest. Some of the statutes which respects said principles are: Land Acquisition Act, Urban Ceiling Act, Land Reforms Act, Suspension, Modification or Cancellation of Certain rights injurious to public interest. In continuation of what is stated above, the over riding aspect would be, public 52 interest cannot confront against the Security, Integrity or Sovereignty of India, which is the sworn oath of every Indian.
72. `Indian Air Force' is one of the Defence wings of India. Defendant No.3 is a part of the latter. Right of Easement including passage, air, water may use with reference to the rights of the citizen. However, in a way of not drilling holes to the layer of security and integrity.
73. A contractual or right developed by custom or usage thereafter being recognized by the Government, nodoubt, would be subject to statutes like the Easement Act and the related. But when the issue involved is discharging the official duty and rendering service to the Nation with utmost confidence warrants invariable exclusion of third parties into the defence areas.
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74. The normal Rule of entitlement is, easement of necessity under Section 13 of Easements Act, is available whenever alternative access, however inconvenient may be is not at the availability. Whether pleadings or the evidence be it oral or documentary and the submissions of the plaintiffs is that the defendant No.3 has to be prevented from closing the entry into the said road.
75. What is not forthcoming in the appreciation of evidence by the learned trial Judge is the aspect of security and sensitivity of the matter relating to defence establishment. It goes without saying that whether defence operations, public or third parties access, movement, flow of vehicles, gathering of vehicles or persons, transportation of articles or goods etc., cannot be only at a distance of 9 or 12 inches width of a granite wall. Security and integrity are rear demands which are essential for the security of 54 India. The decisions in this connection cannot be taken by virtue of presumption of no danger if the third parties are allowed into the vicinity or catching distance of defence establishment.
76. Insofar as, the Commissioner or the Committee appointed by this Court or the documents relied upon by the parties are concerned, the reasoning assigned by the trial court proceed on the basis of existence of road, usage of road, resistance put forth by the defendants or usage of public of various denomination, flow of different types of vehicles and the inconvenience caused to the public if the road is closed. However, the issue of consequence of gathering of public, private persons whether residents, citizens or foreign nationals are not considered. One cannot volunteer to place a security or defence establishment within the reachable vicinity of third party to repent further. When the decision has to be 55 taken in allowing the entry of third parties to an area or the disputed road, without batting an eye lid, one has to take the latter and there cannot be a compromise in this connection.
77. As discussed above, it is the National interest that overrides all other interests which includes public interest as well. As a matter of fact or process which counters National interest can never be regarded as public interest. Protection of property like the one of the disputed road or the property of the defendant No.3 may include exclusion of others pre-existing rights. Degree of protection including exclusion from interference or participation differ from one to another. Right of public to the public playground, park, entertainment center, Government offices totally stand at a different footing compared to sensitive and confidential organization relating to space research organization, atomic research organization, defence 56 establishment whether of army, navy or Air Force. The circumstances of prevention of interference changes rapidly from time to time and place to place. The degree of apprehension of threat of terrorist activity and impact varies from time to time. What was hundred years back vary to the stage of 50 years back, similarly to what was 20 years back and the present day. The examples of terrorist acts stated above have thought unforgettable lesson to the safety and security of the territory of India both waterways, air and the land. The noted and infamous terrorist organization always keep their threats alive and even a small pigeon hole is sufficient for them to make a mountain out of a mole and cause distress, damage and kios. For allowing a person to have access into the defence establishment one has to think for so many times. When the Nation encounters disturbances at the border or within the territory, the process like 57 movement of people, public and vehicles of persons including those who are unknown or identity is not established in addition to those who move with fake identity. Very often misuse and abuse of developed Science and Technology is made by the evil minded persons. In this connection, protection required is to be beyond the reach of such evil minded persons.
78. The disputed road tears the 3rd defendant's property into two parts being just bifurcated by granite walls and further facilitates easy approach from outskirts, villages and nearly unidentified places and vulnerability is that any untoward may become a reality. It may be argued that no problem was reported for over decades but the answer is quite simple, as the sensitivity of situation, fearsome atmosphere did not exist earlier with so much of rigorousity. Even places with tight security cannot venture, relax any accommodation to outsiders. 58
79. The nature of third defendant's property is that in times of requirement it has to house crucial, confidential and also sensitive discussion. The aerial space or bifurcation of the road and property by one wall cannot be believed to be safety aspect. The plaintiffs also claim collusion between defendant No.1 and 2 with defendant No.3 in favour of benefit to the latter. That cannot be the case in the circumstances all of them are Government bodies regard being had to the fact that second defendant has not filed written statement.
80. As a matter of fact despite the fact that the suit is filed in representative capacity claiming public interest, considering the prayer, plaint averments and the responsibility of the third defendant and the nature of activities, matter ought to have been considered on the tenability. Prosecution of the 59 proceedings in the light of the circumstances stated above, the very admissibility of the suit should have been considered. Entertaining public is nothing but surrendering constructive control over the land and aerial space to the persons which may include the undeserving.
81. Students, farmers, workers and other denomination of public might have been using the road till date. But another fact which is not disputed rather considered in the Commissioner report or committee report is regarding the existence of the alternative road. The very map Annexure-E speak that the commuters need not walk or travel on hilly or rocky areas exposing themselves to danger. On the other hand Bangalore is a Metropolitan city and different means of transport is available at all reasonable timings, as such insisting only on dispute 60 road is nothing but a high risk which does not bear justification.
82. In my further consideration I find that allowing public or vehicles or other means over the said road so far itself is a mistake and any amount of continuing the mistake will have multi adverse effect. The fragrance or the texture or the meaning of a legal right is that it shall not cause injury to others directly or indirectly. "One has a right to swing the walking stick till the nose of another man begins".
83. The consideration of demand by the plaintiff resistance by the defendant No.3 is beyond the reach of compromises, property rights, assertions and denials which requires independent evaluation.
84. The doctrine of reasonable classification even in its relaxed or enlarged form provides for reasonable checks and balances more particularly without 61 deviating to any extent from the ground norm or the constitution.
85. The claim of the plaintiffs has been agitated with the assertion of the deprival of fundamental right. It is necessary to mention that the availability of alternative access the nature of activity of the third defendant being the one of defence of the Nation. Thus, in case of taking away the right of the road can either be considered as a deprival or infringement or abridging but on the other hand it is the need or necessity of the hour. Fundamental right does not mean that a citizen or a person is entitled to luxuries of rights of road at any risky step or at the cost of the public interest.
86. It is not the case of either all or any of the plaintiffs or public that their houses are abutting the road so that they get permanently confined if the road 62 is closed at entry and exit points. A right no more remains a right when it turns out injurious, threat or detrimental to National interest relating to our Defence forces.
87. However the disputed road is not a cantonment area on the other hand, it is the private property of the defendant No.3.
88. Fire Brigade department will be storing fleet of fully loaded water tanks with it. But at the time of exigency of the requirement of drinking water or its requirement for emergency, they will not spare even a barrel of water. This is abundant precaution and they are justified in their refusal.
89. At the cost of repetition, it is necessary to mention that the trial court totally ignored the unique nature of the right of defendant No.3 that it was not only matter of right of way or access coupled with 63 alternative access. On the other hand, it is related to substantial aspect of privacy, security to one of the prime defence establishments of India, which warrants the exclusion of public or third parties to have access to the disputed road. Further, the Doctrine of Jus necessity also apply to exclude members of public to access over the road space.
90. Even Judgment and decree passed by the trial Judge makes the relief granted to the plaintiffs as conditional one. The relief is not available to the plaintiff in principle. Per contra the defendants are entitled to interfere legally and equally true is that plaintiffs are contented with it.
91. It is not a hyper technical observation on the operative portion of the Judgment as the trial court is not firm on the operational effect of the verdict. 64 Further it is an admitted fact that the restrictions were gradually but steadily unhealed.
92. It is also necessary to mention about the sketch prepared by the competent authorities regarding the space on which the disputed road exists and also spells out the availability of alternative access. Besides no need to form fresh road or roads when the disputed road is closed for public.
93. R-2 State of Karnataka who is defendant No.2 in the original suit has not opposed the appeal.
94. In the overall circumstances of the case, it is the 3rd defendant who has come in appeal. Neither the plaintiffs nor the defendant No.2 has challenged the judgment and decree passed in O.S.No.6504/1996 which was decreed in part. The defendant Nos. 1 and 2 have literally endorsed the view of defendant No.3. 65
95. Thus, for the reasons morefully assigned above and the discussions made in detail, I find the Judgment and decree passed in O.S.No.6504/1998 dated 01.02.2003 does not answer the test of reasonability and cannot be called as product of comprehensive appreciation of evidence and it is liable to be set aside.
96. Accordingly, appeal is allowed. The Judgment and decree passed by the trial Judge in O.S.NO.6504/1996 on 01.02.2003 is set aside. Consequently, the suit of the plaintiffs is dismissed.
Sd/-
JUDGE tsn*/SBN