Andhra HC (Pre-Telangana)
Anand Bala And Another vs Union Of India Rep. By Its Military ... on 14 September, 2016
Equivalent citations: AIR 2017 (NOC) 1137 (HYD.)
Author: S.V.Bhatt
Bench: S.V.Bhatt
THE HONBLE SRI JUSTICE S.V.BHATT WRIT PETITION No.26484 OF 2011 14-09-2016 ANAND BALA AND ANOTHER PETITIONERS UNION OF INDIA REP. BY ITS MILITARY ESTATES OFFICER A.P.CIRCLE, SECUNDERABAD AND OTHERS RESPONDENTS <GIST >HEAD NOTE: COUNSEL FOR PETITIONERS: MR.D.V.SEETHARAM MURTHY COUNSEL FOR RESPONDENTS 1, 3 & 4: MS. S.SIVA KUMARI COUNSEL FOR RESPONDENT No.2: MR.DEEPAK BHATTACHARJEE ?CASES REFERRED: 2015 (1) ALT 91 HONBLE SRI JUSTICE S.V. BHATT W.P. No.26484 OF 2011 ORDER:
Heard Mr.D.V.Seetharammurthy, learned senior counsel for petitioners, Ms.S.Siva Kumari, learned counsel for respondents 1, 3 and 4 and Mr.Deepak Bhattacharjee for respondent No.2.
The petitioners pray for Mandamus declaring the action of respondents in closing down the Lake Lines Road (for short LLR) (a public thoroughfare) in Bolarum, Secunderabad, as illegal, without jurisdiction, arbitrary and violative of Articles 14, 19 (1) (d) and 21 of the Constitution of India and consequently direct respondents to reopen the LLR.
The petitioners through the instant writ petition seek for enforcement of their alleged right of ingress and egress through LLR. The petitioners, on the one hand, rest the claim on the alleged easementary right, easement of necessity and on the other LLR as a public thoroughfare, forming part of Cantonment Area.
Per contra, the respondents stoutly deny existence of any right in petitioners and justify closure of LLR for safety and security of vital installations, including defence areas in the changed scenario. The respondents firstly deny the existence of the easementary right of the petitioners, and secondly claim that LLR is a road passing through Class A land under exclusive administrative control of defence administration. Therefore, the writ prayer against a road passing through Class A land is unsustainable.
In this backdrop, the petitioners, through their affidavits, reply affidavit and annexures, attempt to establish the existence of LLR as a thoroughfare and is not passing through Class A land. The respondents in reply filed counter and additional counter affidavits.
The counsel appearing for the parties admit that the closure of 9 roads as picturesquely explained in Ex.P.1 was the subject matter of decision in MANI ENCLAVE RESIDENTS WELFARE ASSOCIATION V. UNION OF INDIA . The LLR, a road passing through Bison division and Bolarum Golf Course, is closed by the respondents. The entirety of pleadings and material convert the instant writ petition into an original suit for enforcement of easementary or public road right. This Court examines the right enforced by the petitioners strictly within the jurisdiction of Article 226 of the Constitution of India.
Averments in writ affidavit:
The petitioners claim ownership and possession to an extent of 5-86 acres in Sy.No.219 of Yapral Village, Malkajgiri Mandal, Ranga Reddy District. This Court in this writ petition is not examining the alleged exclusive right of petitioners to the land in Sy.No.219 and shall not be understood as expressing any view thereon. The right of ingress and egress claimed by petitioners is examined from google maps etc., placed by petitioners.
The petitioners claim to have purchased the said extent of 5-86 acres through sale deeds dated 13.10.1994, 17.10.1994, 20.02.1995, 23.02.1995 and 25.02.1995 and refer to the judgment and decree in O.S.No.606 of 1971, on the file of the V-Additional Judge, City Civil Court, Secunderabad. The suit was filed by respondents for declaration of title and recovery of possession of the agricultural land in Sy.No.219 of Yapral Village. The petitioners allege that in March, 2011 on the permission granted by the General Officer Commanding-in-Chief, the defence personnel have erected barriers/check posts on either side of LLR, preventing entry of civilians and movement of vehicular traffic through LLR.
The petitioners on account of road barriers on either side of LLR are unable to access the land owned by them in Sy.No.219 of Yapral Village. It is the definite case of petitioners that except LLR, the petitioners do not have approach road to the lands in Sy.No.219 of Yapral Village. The petitioners refer to the inconvenience allegedly faced by the families living in the nighbourhood localities of LLR. According to petitioners, the Golf Course and the LLR were developed by British Troops stationed at Secunderabad. The existence of octroi post at the junction of LLR and Rajendra Singh Road in the plan prepared in the year 1929 by Survey of India shows that LLR has been a thoroughfare. The use of LLR as a thoroughfare was without restrictions, till the traffic barriers on either side of LLR were established by the respondents.
The petitioners further allege that on 20.08.2011 they went to their agricultural land for constructing compound wall and done little spadework and the respondents on 23.08.2011 have taken away the labourers working at the site in a truck and prevented the petitioners from marking the land for constructing compound wall. The aforesaid action, it is alleged, deprived petitioners access to land and enjoyment of property.
The petitioners assert that the closure of LLR by respondents violates fundamental rights guaranteed to residents/citizens under Articles 14, 19(1) (d) and 21 of the Constitution of India. The closure of LLR on both sides of the road by Army is completely unauthorized. The petitioners emphatically allege that the security reasons cited by the respondents for closure of LLR are misconceived.
According to petitioners, the neighbouring areas viz., Alwal, Bolarum, Yapral have the reputation of being historically peaceful and the security reasons stated by the respondents are untenable. The closure of LLR for security reasons is not approved by the Secunderabad Cantonment Board (SCB) and the same can be inferred from the dissent expressed by elected members of the SCB. The petitioners assert that the closure of LLR is in violation of Section 258 of the Cantonment Act (for short the Act) read with Rule 13 of the Cantonment Land Administration Rules, 1937 (for short the Rules).
According to petitioners, LLR is not a Class A (1) land to claim exclusive control of LLR by military authorities. The golf course is beyond the management and control of respondents. Finally, the petitioners allege that the easementary right of ingress and egress claimed by them is legitimate and reasonable. The LLR is fastened with servient heritage and, therefore, closure of LLR is impermissible. Though mala fides in closure of LLR are alleged, this Court is not adverting to stray and inchoate allegations of mala fides alleged against respondents.
Averments in counter affidavit:
Colonel Yogander Singh filed counter affidavit on behalf of respondents 1, 3 and 4. The case of respondents is that Lake Lines Area and the road passing through Lake Lines Area are covered by GLR Sy.No.119 and GLR Sy.No.121 and are Class A (1) defence lands. As per the Rules, the jurisdiction of Cantonment Board and military authorities is classified as follows:
(i) Classification and Management of Land inside cantonment
(ii) Control and Management of Defence Land.
Rule 5 of the Rules defines Class A (1) and Class A (2) lands. Rule 9 deals with Management of Land. The management of Class A (1) land is entrusted with the Military Estates Officer under Rule 9. Management of Class A (2) land vests in Military Estates Officer. Management of Class B (1) land vests in the department or administration in occupation of the land. Management of Class B (2) land vests in the State Government in occupation or having control over the land. Management of Class B (3) and B (4) lands shall ordinarily be entrusted to Military Estates Officer. The proviso authorizes Central Government to entrust management of such land to the Cantonment Board. Management of Class C land vests in the Cantonment Board under Section 108 of the Act.
Rule 14 of the Rules which provides for Special Rules for Class A lands is relied on by the respondents. In support thereof, the respondents rely upon certified extract of plan of SCB showing layout of Class A (1) defence land in Lake Lines Area and adjoining Military Areas. The respondents rely on para 16(a)(xi) of Defence Service Regulations to contend that Area Commander is responsible for taking preventive measures to check encroachment over defence land and property. In reply to the twin grounds of challenge viz., the closure of LLR is without following Section 258 of the Act and on the easementary right of petitioners, it is firstly contended that LLR and adjoining areas in GLR Sy.No.119 and GLR Sy.No.127 are Class A (1) defence lands. The control and management of Class A (1) defence land is the sole responsibility of military authorities and SCB has no role in this behalf. Therefore, Section 258 of the Act is not applicable to the closure of road passing through defence land.
As regards easementary right claimed by petitioners, it is averred that the land of petitioners or any civilians is abutting/ adjoining LLR to claim ingress and egress through LLR. It is categorically asserted that the entry from petitioners agricultural land in Sy.No.219 into LLR is not immediate but only after entering the military land in existence between LLR and petitioners land. Lake Lines Area through which LLR is passing through is Class A (1) land and belongs to military authorities. The LLR is meant and intended for movement of the troops by military authorities and is not a public thoroughfare. The respondents incidentally allege that the title of petitioners to agricultural land in Sy.No.219 was in question in the appeal pending in the High Court and the instant petition is frivolous and vexatious.
It is denied any barrier is constructed on civil property in Revenue Sy.Nos.244 and 247. On the contrary, the barriers complained in the writ petition were constructed on the military land. The respondents explained the layout of military roads viz., Hislop Road, Amherst Road and LLR. On the exact location and utility of LLR, the reply of respondents is as follows:
Lake Line Road:
General Gerard Lake, 1st Viscount Lake after whom the lines and the road is named (27th July, 1744 20 February 1808) was Commander-in-Chief of Bengal Army from 1801 to 1807. LLR is also purely military road entirely located on A (1) defence land and built purely for the purpose of linking married quarters of troops located at lake lines with Amherst road located inside A (1) defence land.
According to respondents, defence land is located in between the land of petitioners in Sy.No.219 and the LLR. Access to LLR through military land i.e., Class A (1) cannot be entertained. It is alleged that the petitioners attempt to grab military land and the instant litigation is nothing but a speculative litigation. The respondents submit that such speculative litigation should be curtailed in the interest of security of nation. Respondents deny the existence of octroi post on any of these roads.
The respondents assert that they have exclusive authority to analyse and decide on security and threat perception but not the petitioners. According to respondents, army troops, military installations and their families as well as military installations have always faced grave threats from the enemies of India and it is clear that these security threats have increased in intensity and dimension in the recent past which is evident from targeting of symbols and other places by these divisive forces. Bolarum Golf Course/Bison Environment Park is A (1) defence land and it is a training area for the troops where various kinds of tactical and technical training is carried out regularly. The recreational activities are always subject to training needs of armed personnel. The LLR and the Lake Lines Area are constructed by army and both are under the control of 4th respondent in his capacity as Administrative Commandant. The respondents replying to the allegation of easement of necessity refer to the existence of following roads.
(a) Road Kowkoor to Hakimpet via Bharatnagar (b) Road Kowkoor to Shamirpet via Badshapet (c) Road Kowkoor to Dammaiguda via Jawahar Nagar and Balajinagar (d) Road Kowkoor to Defence Colony via Yapral and Ammuguda (e) Road Kowkoor to Safilguda via Yapral, Ammuguda and Neredmet (f) In addition the Army has provided controlled access to civil population along following roads: (i) Road Kowkoor to Bolarum Octroi Post (ii) Balaclava Road (Lehl Road) Yapral to Lothukunta via Ammuguda
(iii) Rajender Sinhji Road from its junction with Balaclava Road up to Lal Bazar
(iv) Hislop Road within Presidential Estate.
The respondents state that the needs of civil population living in adjoining areas and genuine persons are taken care of and allowed to use a road after due vetting by military authorities. However, such concession, if any, shown cannot be claimed as a matter of right by civilians in the neighbourhood of the petitioners herein.
The petitioners filed reply affidavits dated 03.11.2011 and 23.08.2016. Learned senior counsel confined his submission to the stand taken in the reply affidavit. Hence, reference to reply affidavit dated 23.08.2016 would suffice reference to averments and arguments of petitioners. It is necessary to remark that the petitioners complain against the claim of title and exclusive enjoyment right of respondents to LLR. The objection of petitioners does not conform to the right of easement. The petitioners further allege that LLR connects Yapral on the East and Bolarum on the West. The length of LLR is 2200 metres in which 600 metres is towards Yapral end and is under the direct control of State Government. There are plans to widen 600 metres of 2200 metres road into 100 feet road as per Master Plan of HUDA. Assertions of respondents by themselves on LLR do not define LLR as passing through A (1) defence land. The petitioners refer to Ex.A20 in O.S.No.606 of 1971 to contend that octroi post was in existence as early as 1929. The respondents cannot assume jurisdiction by calling LLR a military road. Rule 13(3)(i)(d) of the Rules provides that where roads, over which the public have a right of way, traverse a holding, such roads should be excluded from the holding even if they are military roads. According to petitioners, Sy.No.219 is abutting LLR and, therefore, the petitioners have a right of ingress and egress through LLR. The petitioners place reliance upon the findings recorded by the trial Court in O.S.No.606 of 1971 on the file of the III-Additional Senior Civil Judge, City Civil Court, Secunderabad and the appellate Court in A.S.No.66 of 2005, on the file of I-Additional Chief Judge, City Civil Court, Secunderabad in support of their title to Sy.No.219 of Yapral Village, Malkajgiri Mandal, Ranga Reddy District. The petitioners allege that permanent constructions have been made at LLR and Hislop Road junction, at Siddipet Highway and LLR junction. According to petitioners, LLR is outside the unit lines and a public thoroughfare for over 100 years. The maintenance of golf course by third party is referred and that the assertion of respondents that LLR is a military road, is unsustainable. The petitioners distinguish the decision of this Court in W.P.No.5572 of 2014 and batch and state that the principle is not applicable to the facts of the case on hand. According to them, GLR Sy.No.127 is not subject matter of W.P.No.5572 of 2014 and the understanding of respondents in this behalf is incomprehensible. The petitioners pray for declaration of easementary right and also right of uninterrupted ingress and egress through LLR.
Colonel Nigel P.Hanvey, Administrative Commandant, Station Headquarters, Secunderabad, filed additional counter affidavit dated 09.08.2016. The averments, in brief, are as follows:
The respondents reiterated that LLR is an internal military unit line road on A (1) defence land. Reference by petitioners to Ministry of Defence letter No.4(2)/2015-D(Q&C) dated 07.01.2015 is out of context and purport is not properly understood by the petitioners. According to respondents, said letter applies to cantonment roads and public roads in the civil areas of cantonment under the jurisdiction of Cantonment Board. It has no applicability to the internal military line road on A(1) defence land. The respondents assert that lake line range road is not a public road. LLR is passing through army land and LLR is used for training army personnel and movement of vehicles and personnel. The respondents categorically assert that LLR is within two very important units of the army which has specific role in war, and as performing their objective, they have to train in peace and cannot be interrupted or interfered with by civilian activity, training activities etc. They cannot be exposed to common view due to national security and safety issues. According to respondents, GLR Sy.No.127 is classified as A(1) defence land under the management of Quarter Master General and entered as such in the General Land Register maintained by the Defence Estates Officer under the Rules. The respondents deny trespass alleged by the petitioners or using bulldozers by its personnel and state that the land covered by GLR Sy.Nos.127 and 119 has seen upsurge of undergrowth and the estate administration had just cleaned up the undergrowth in the locality. The respondents pray for dismissal of the writ petition.
Mr.Sura Balakrishna, Chief Executive Officer of SCB/ 2nd respondent, filed counter affidavit. He is the administrative authority under the Act. The deponent refers to the Act and Rules 5, 9 and 14 of the Rules. The 2nd respondent supports the stand of respondents 1, 3 and 4 that there is distinction between lands under the administrative control of Cantonment Board/Civil Control and Class A lands under military authorities. The 2nd respondent states that LLR is in GLR Sy.No.119 and GLR Sy.No.127 are Class A(1) defence lands. The 2nd respondent replies on the breach of procedure complained under Section 258 of the Act and the easementary right claimed by petitioners is as follows:
Section 258 of the Act does not come into operation in the case on hand, for the LLR and adjoining areas in GLR Sy.No.119 and GLR Sy.No.127 are Class A (1) defence lands. According to 2nd respondent, the writ petition is misconceived and liable to be dismissed on this sole ground. As regards the easementary right claimed by petitioners, it is replied that neither petitioners nor any civilians land is located adjoining LLR to claim ingress and egress as a right of easement. The petitioners land is situated south of the boundary of military land and not adjacent to LLR. According to 2nd respondent, petitioners or civilians to reach LLR from Sy.No.219 necessarily have to first enter military land and then have access into LLR. The entire Lake Line Area is Class A (1) land and belongs to military authorities. LLR was used by military authorities for movement of their troops and is not a public thoroughfare. According to 2nd respondent, the agricultural land of petitioners is 50 metres away from Revenue Sy.No.219 and that LLR is the sole access to their agricultural lands, is false and denied. The 2nd respondent accepts the division of jurisdiction depending on classification of the land between cantonment board and the military authorities. The 2nd respondent states that many blatant lies are incorporated in writ affidavit to suit the convenience of petitioners. The inconvenience pleaded by petitioners with the closure of LLR is denied as absolutely false and incorrect. The location of petitioners land vis--vis LLR is also explained, and it is alleged that the writ petition is more in the nature of a speculative litigation. The inter connectivity between various roads is explained and it is said that the allegations in the writ affidavit do not attract the jurisdiction of this Court under Article 226 of the Constitution of India. As regards safety, security and the primacy on the opinion of military authorities, the 2nd respondent asserts that the authority to decide security threats is not with the petitioners. Army troops, military installations and their families as well as military installations have faced grave threat from the enemies of India. It is clear that ever present security threats have increased in intensity and dimension in recent past, as is evident from targeting of symbols and other places. The 2nd respondent disowns jurisdiction on LLR. It is further stated that Bolarum Golf Course, Bison Environment Park are in A (1) defence land and it is a training area for the troops where various kinds of tactical and technical training is carried out regularly, sport or other recreational activities etc., are subject to training needs of military personnel. The Administrative Commandant is competent to take necessary measures, including preventive measures vis--vis military properties/roads. The 2nd respondent explains overall connectivity in the area by furnishing the following details:
(a) Road Kowkoor to Hakimpet via Bharatnagar (b) Road Kowkoor to Shamirpet via Badshapet (c) Road Kowkoor to Dammaiguda via Jawahar Nagar and Balajinagar (d) Road Kowkoor to Defence Colony via Yapral and Ammuguda (e) Road Kowkoor to Safilguda via Yapral, Ammuguda and Neredmet (f) In addition the Army has provided controlled access to civil population along following roads: (v) Road Kowkoor to Bolarum Octroi Post (vi) Balaclava Road (Lehl Road) Yapral to Lothukunta via Ammuguda
(vii) Rajender Sinhji Road from its junction with Balaclava Road up to Lal Bazar.
(viii) Hislop Road within Presidential Estate.
The 2nd respondent categorically states that gated communities which have been developed in the recent past and the colonies developed by HUDA in plot adjoining Revenue Sy.No.219 are served with a network of streets and roads. The easement of necessity is misconceived and prays for dismissal of the writ petition.
Mr.D.V.Seetharammurthy for petitioners has put forward the following contentions:
The petitioners are owners of agricultural land in Survey No.219 of Yapral Village. To the north of petitioners land, LLR is situated and runs in east-west direction. The petitioners have easementary right of ingress and egress to their agricultural land through LLR. The defence land is conditioned with the obligations of dominant and servient tenements; the closure at the beginning of LLR on either side is depriving the easementary right of petitioners; the petitioners have easementary right and the same be recognized and provided through LLR. He further pleads that the right claimed is one of necessity and, therefore, the easmentary right of necessity is well recognized. Further, it is contended that there are no disputed questions of fact and prays for considering the rights under Article 226 of the Constitution of India. He further contends that the LLR is a public thoroughfare; the existence of octroi post as early as 1929 and the development plan undertaken by HUDA in the notified Master Plan would demonstrate that LLR is a public thoroughfare forming part of the administrative control of 2nd respondent. The closure on either side of LLR by defence personnel on the recommendation of General Officer Commanding-in-Chief, Southern Command, Pune, is arbitrary, factually untenable and legally unsustainable. He places reliance upon Section 258 of the Act to further the submission that the closure of road by respondents without following the procedure stipulated in Section 258 is illegal and consequently the closure shall be removed and reopened for public enjoyment of LLR. According to him, the Army has used its force and causing inconvenience to the citizens in the neighbourhood. Therefore, he prays for allowing the writ petition.
Ms.Siva Kumari appearing for respondents 1, 3 and 4 contends that the writ prayer is completely misconceived and on this ground the writ fails. The exclusive right claimed by the petitioners for agricultural land in Sy.No.219 has not become final, for respondents 1, 3 and 4 filed second appeal in this Court and the appeal is pending adjudication. She further contends that the description of property allegedly purchased by petitioners through various sale deeds establishes that LLR is not immediately on the northern side of petitioners land but 75 width land is located between petitioners land and LLR. She contends that the easmentary right claimed by petitioners firstly is not available to them and secondly the writ remedy is misconceived for enforcement of the alleged right against the road passing through Class A (1) land in the exclusive jurisdiction and authority of Ministry of Defence. According to her, sensitive facilities of the defence are in existence in this Lake Lines Area and permitting either general public or petitioners for access to LLR is against the interest of safety and security of these establishments. Respondents 1, 3 and 4 are competent to deal with and take decision on the roads passing through Class A (1) lands and the procedure complained under Section 258 of the Act has no application to the facts of the case. She places strong reliance upon Rules 4, 6 and 13 of the Rules to contend that jurisdiction on class A (1) land defence land vests with defence administration, but not Cantonment Board.
It is further contended that this Court, after perusing the information furnished in the sealed cover, is prima facie satisfied that facilities of importance are established and functional in Lake Lines Area/LLR. Therefore, while considering the writ prayer, this Court ought not to sit in judgment or exercise power of judicial review in matters of safety and security of persons and installations of defence land in Bolarum village. She prays for dismissal of the writ petition.
Mr.Deepak Bhattacharjee supports the stand taken by respondents 1, 3 and 4 and has demonstrated how the easement of necessity claimed by the petitioners is misconceived. He contends that reference to Section 258 of the Act by the petitioners and complaint against the 2nd respondent thereunder is misconceived, for according to 2nd respondent the defence land coming under various categories is not within the jurisdiction of Cantonment Board and the defence personnel are competent to decide on all aspects concerning defence land. He relies upon the decision of this Court in MANI ENCLAVE RESIDENTS WELFARE ASSOCIATIONS case (supra) and contends that even this Court has accepted the primacy of authority and discretion by the competent authorities while exercising the power under Section
258. He prays for dismissal of the writ petition.
I have perused the material available on record including the sealed cover placed for perusal of the Court by respondents 1, 3 and 4 and taken note of the submissions of counsel appearing for both sides.
Now, the point for consideration is Whether the petitioners are entitled for Mandamus declaring the closure of LLR, as illegal, without jurisdiction and unconstitutional and if so to what relief?
The petitioners claim both right of easement and right of ingress and egress through LLR as a public thoroughfare. These two distinct rights claimed by the petitioners are factually and legally examined for recording the finding on this aspect of the matter. Presumably, to claim easementary right, petitioners rely upon sale deeds in their favour executed between 13.10.1994 and 25.02.1995, proximity of purchased land to LLR and the alleged right on the principle of dominant and servient tenement. For the limited purpose of appreciating petitioners land vis--vis the location of LLR, the boundaries in sale deeds are considered.
The schedule of property in sale deed dated 13.10.1994 is as follows:
SCHEDULE OF PROPERTY All that piece of Agricultural Land admeasuring One Acre equivalent to 0.4046 Hectares in Survey No.219, situated at Yapral Village, Malkajgiri Mandal, Ranga Reddy District and bounded on the:
NORTH BY : Road
SOUTH BY : Land in Sy.No.219;
EAST BY : Land in Sy.No.219;
and
WEST BY : Quarters;
IN WITNESS WHEREOF, the Vendors herein set
their respective hands and seals unto this DEED OF SALE on the day, month and year first above written.
In the schedule appended to sale deed dated 13.10.1994, northern boundary is shown as road. The property purchased through the instant sale deed is 265x165. On northern side of this 265x165, 75 width patch is shown in between road and the property purchased through the deed dated 13.10.1994. On the western side, the boundary is shown as Army property. In sale deed dated 17.10.1994, western boundary is shown as Army property. Through sale deed dated 20.02.1995, the petitioners allege to have purchased plot measuring 495 (478) x 138. The land in between road and petitioners land is left without description. Through sale deed dated 23.02.1995, the petitioners claim to have purchased 75 width of vacant land shown in sale deeds dated 13.10.1994 and 17.10.1994. The northern boundary is shown as road. The simple construction of these four documents would go to show that in the first sale deed if the northern boundary of plot purchased belonged to the vendors of petitioners or is forming part of Sy.No.219, the parties to sale deed dated 13.10.1994 and 17.10.1994 would have described with precision the northern boundary. At the earliest point of time, the existence of vacant land between the land purchased by the petitioners and LLR is accepted, but ownership is not described or left this boundary without description. Sale deed dated 23.02.1995 relates to purchase of 75 width shown between LLR and the plots purchased through sale deeds dated 13.10.1994 and 17.10.1994. By reference to these documents, it cannot be presumed that the petitioners vendors enjoyed right on the 75 width shown in sale deed dated 13.10.1994. For if the vendors under sale deed dated 13.10.1994 have retained any land in between plot sold and LLR, the retained portion would have been stated with certainty. Therefore on these self-serving deeds together with google maps, it cannot be held that LLR is abutting the property purchased by petitioners. On the other hand, in the first sale deed, 75 width is left without details and that probabalizes the case of respondents that to the south of LLR at subject location, there is the land of defence. This Court is of the view that the assertion of respondents that there is a vacant land of 50 on the south of LLR and to the north of land in Sy.No.219 is probabalised.
Therefore, the easementary right claimed by petitioners cannot and could not be accepted based on the sketchy details exhibited by petitioners. Having considered the important documents on which title and easementary right are claimed, this Court has difficulty in accepting the rights of dominant tenement in petitioners and accepting the obligation of servient tenement in defence. The prayer for easementary right is not made out on facts of this case. The right, to merit acceptance under the Easements Act, must satisfy the principle of dominant tenement and servient tenement in the fact situation of a case. The right is enforced against servient tenement after the right is established in full-fledged trial. The petitioners in the considered view of this Court failed to establish the claim of easementary right.
The other facet of petitioners claim is that LLR is a thoroughfare. The easementary right is hotchpotched with the right of public on public thoroughfare. The right of public on public thoroughfare does not arise from easement. In other words, the right to use a public road is not an easement but an incident of public road. This Court is of the view that the right of easement claimed by the petitioners suffers from self-evident contradictions and this Court in the facts and circumstances of the case and having regard to the objections raised by respondents together with material placed on record is not persuaded to exercise its jurisdiction in declaring petitioners right of easement. Hence, this point is answered in favour of respondents and against the petitioners.
The petitioners simultaneously claim that LLR is a public thoroughfare and LLR is under the administrative jurisdiction of 2nd respondent. Therefore, the closure of LLR by respondents 1, 3 and 4 is without jurisdiction and contrary to Section 258 of the Act. On the other hand, respondents contend that LLR is passing through Lake Lines Area, hence called Lake Lines Road. Several primary and ancillary facilities are established in Lake Lines Area and along LLR and it is internal road meant for exclusive use of defence administration. Therefore, LLR is not within the jurisdiction of 2nd respondent. The details of sensitive information furnished to the Court certainly show the establishment and operation of sensitive facilities in Lake Lines Area and along LLR. The reasons weighed with the competent authority are not justiciable and they are left better to the wisdom and discretion of experts. The respondents rely upon Rules 4, 5, 6, 13 and 14 of the Rules.
The case of petitioners is that LLR is a public thoroughfare. The petitioners rely on Section 258 on the assumption that LLR is forming part of the administrative control of 2nd respondent. The petitioners rely on google maps marked as annexures P-1 to P-3 to show that LLR is a public thoroughfare. The stand taken by 2nd respondent/competent authority on LLR carries sufficient weight that LLR is not within its jurisdiction by operation of the Rules and is in the exclusive administrative control and jurisdiction of defence authority. The 2nd respondent in its counter affidavit has clearly and categorically stated that LLR does not come within the administrative control of 2nd respondent. This Court finds it useful to excerpt the stand taken by 2nd respondent at this stage of consideration.
It is submitted that Class A1 lands which are under the management of military authorities are spelt out in Rule 9(1) (i) of the military land manual and Annexure III of CLA Rules 1937. In the instant case Lake Likes area the road therein lies in GLR Survey No.119 and GLR Survey No.127 and is Class A1 Defence Land.
xxxxxxxx It is submitted that the writ petition is filed particularly on two grounds such as (1) the respondents while closing Lake Lines road, did not follow Section 258 of the Cantonment Act (2) the petitioner and others are denied entry to the Lake Lines Road as they do have easement right. In reply to these contentions, as narrated above the Lake Lines road and adjoining areas are in GLR Survey No.119 and GLR Survey No.127 which are class-A (1) Defence Land. As per Rule 9 of the CLAR 1937, class A1 defence land, its control and management is the sole responsibility of military authorities and Secunderabad Cantonment board has no role in this regard. In view of this, Section 258 of the Cantonment Act did not come into operation in this case. Hence the writ petition is misconceived and liable to be dismissed on this sole ground. With respect to (ii) ground of easement right into the Lake Lines Road, (a) neither petitioners nor any civilians lands are situated adjoining lake lines road to get ingress and egress. In fact, petitioners alleged lands are situated south of the boundary of military land (which is Class-A(1) land) and not adjacent to the lake lines road. If petitioners or any civilian wants access to the Lake Lines Road necessarily he/she shall have to first enter military land and then only have access into the lake line road. (b) The entire lake lines area on which the road is situated is Class A (1) land and belongs to Military Authorities. The lake like road has been laid by military authorities for the movement of their troops and the same is not a public thoroughfare. (c) the petitioners lands title itself is in question before this Honble High Court in separate civil proceedings. The present writ petition is frivolous, vexatious and liable to be dismissed in limini for the reasons submitted above.
The petitioners with the information they have and that such view further their case for entry into LLR assert that LLR is not Class A (1) land. On the other hand, 2nd respondent in whom the petitioners repose authority as noted above stoutly asserts that LLR is a Class A (1) land. It appears to this Court that the petitioners self-serving stand need not be taken beyond the extant consideration by examining identity of property etc. but suffice it to hold that LLR from material on record can be held as not within the administrative jurisdiction of the 2nd respondent to make out a grievance under Section 258 of the Act.
The Cantonment Land Administration Rules, 1937 were made under the Cantonment Land Administration Act, 1924 (Act 1924). Act 1924 was repealed by the Cantonments Act, 2006. Section 360 of the Cantonments Act, 2006 provides for repeals and savings. It is not in dispute that the Cantonment Land Administration Rules, 1937 are in force and are saved notwithstanding the enactment of the Cantonments Act, 2006.
The next limb of challenge to the closure of LLR is that respondents 1 to 4 did not follow the procedure stipulated by Section 258 of the Act. It is not the case of petitioners that Section 258 is applicable notwithstanding the administrative control of land vested in Central Government, but proceed on the premise that LLR is within the administrative control of 2nd respondent.
Section 258 of the Act reads thus:
Closing and opening of streets.-
(1) A Board may open any street for public use. (2) A Board shall not permanently close any street without the
prior permission of the General Officer Commanding in Chief, or the Principal Director:
Provided that no such street shall be closed for reasons other than the security reasons and without giving a public notice inviting objections and suggestions from the general public.
(3) The Chief Executive Officer may, by public notice, temporarily close any street or any part of a street for repair or for the purpose of carrying out any work connected with drainage, water- supply or lighting or any other work which he is by or under this Act required or permitted to carry out:
Provided that where, owing to any works or repairs or from any other cause, the condition of any street or of any water- works, drain, culvert or premises vested in the Board, is such as to be likely to cause danger to the public, the Board shall-
(a) take all reasonable means for the protection of the adjacent buildings and land and provide reasonable means of access thereto;
(b) cause sufficient barriers or fences to be erected for the security of life and property, and cause such barriers or fences to be sufficiently lighted from sunset to sunrise.
A plain reading of Section 258 is as follows:
(i) enables Board to open any street for public use
(ii) prohibits a Board from permanently closing any street without the prior permission of GOC-in-Chief or the Principal Director.
The procedure and grounds for closure are set out in proviso to Section 258(2). Therefore, the Board is empowered to open a street for public use, but to close a road, the Board, the prior permission of GOC-in-Chief, is required and for security reasons. The purpose underlying prior permission of GOC-in-Chief is to avoid surprise or inconvenience to the defence administration with the closure of road by Cantonment Board or 2nd respondent. This procedural requirement cannot be relied upon by petitioners to complain against closure of LLR by defence administration.
Chapter II of Rules deals with classification and transfer of land: standard table of rents; management. The following Rules are excerpted.
4. Classification of land: For the purposes of the General Land Register prescribed by rule 3:
(a) Land in the cantonment which is vested in the Government shall be divided by the Central Government, or such other authority as the Central Government may empower in this behalf, into two classes, namely-
(i) Class "A" land' which is required or reserved for specific military purposes: and
(ii) Class "B" land which is not so required, or reserved, but which is retained in the cantonment for the effective discharge of the duties of the Central Government in respect of military administration: and
(b) Land which is vested in the Board under section 108 of the Act shall be called class "C" land.
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" (l) land which is actually used or occupied by the Military Authorities, for the purposes of fortifications, barracks stores, arsenals aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges, grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of Regulations for the Army in India and other official requirements of the Military Authorities.
(ii) Class "A" (2) land which is not actually used or occupied by the Military Authorities, but to the use or occupation of which for any other purpose, except temporarily, there exist specific military objections.
Explanation-For the purposes of this rule-
(a) Specific military objections shall be deemed to exist to the use or occupation of land the reservation of which is declared to be desirable by the Central Government in the interests of the discipline, health or welfare of the military forces, or the safety or defence of the cantonment and its inhabitants; and
(b) military recreation grounds means recreation grounds the management and control of which vest exclusively in members of the military forces.
9. Management of Iand:-(1) The management of Class ''A (1) land, except for such areas or classes of areas as may from time to time be declared by the Central Government to be under the immediate management of the Military authorities themselves, shall be entrusted to the Military Estates Officer.
2) The management of Class ''A (2) land shall vest in the Military Estates Officer.
(3) The management of Class "B" (1) land shall vest in the Department or Administration in occupation of the land.
(4) The management of class "B" (2) land shall vest in the State Government in occupation or having control over the land.
(5) The management of all Class "B" (3) land and class "B" (4) land shall ordinarily be entrusted to the Military Estates Officer :
Provided that the Central Government may entrust the management of any such land to the Board.
6) The management of Class "C" land vests in the Board under section 108 of the Act.
14. Special Rules for Class "A" Lands-(1) The administrative control of Class A (1). Land including the detection and prevention of encroachments thereon, shall vest in the Military Authorities for the time being in occupation of the land. The administrative control of Class A (2) land shall vest in the Central Government ..
(2) The Military Estates Officer shall conduct his management of Class 'A' (1) Land (which shall include the development of the resources of the. land, the disposal of usufruct and the planting and maintenance of trees) in consultation with and under the general supervision of the Officer Commanding the station, at whose discretion expenditure will be incurred within the allotment made to the Military Estates Officer and in accordance with the Military regulations in force regarding the planting of trees and the cultivation of land in military areas.
(3) Land in Class 'A' ( 1) shall not be used or occupied for any purpose other than those stated in sub-rule
(i) of rule 5 without the previous sanction of the Central Government or such authority as they may appoint in this behalf.
Provided that the temporary use of class A (1) land which is under the management of the Military Authorities may be permitted by those authorities for the storage of materials by contractors for the purpose of carrying out Government work. Such permission shall be given in writing by the Officer of the Military Engineer Services in charge of the work and shall remain in force only for such period as he may consider reasonable.
(4) Class A (2) land shall ordinarily be kept vacant but its temporary use or occupation may be licenced by the Military Estates Officer under rule 39, or it may be leased by the Military Estates Officer by private treaty for periods not exceeding five years, with the previous sanction of the Officer Commanding-in-Chief, the Command, or for any other period with the previous sanction of the Central Government.
Provided that where any such land is leased for agricultural purposes, the provisions of rule 32 shall apply.
(5) No buildings of any kind either permanent or temporary, shall be erected on class A land except with the previous sanction of, and subject to such conditions as may be imposed by, the Central Government or by such other authority as the Central Government may appoint for the purpose:
Provided that-
(a) a temporary construction may, with the previous sanction of the Officer Commanding the Station be allowed on class A (2) land licensed, by the Military Estates Officer under sub-rule (4); and
(b) a temporary construction, may, with the previous sanction of the authority sanctioning the lease, be allowed on Class A (2) land leased by the Military Estates Officer under sub-rule (4).
Section 280 of the Act confers power to make Rules and Bye-Laws. The Rules are made in exercise of power under Section 280 of the Act and are in force as on date.
Rule 4 of the Rules provides for classification of land for the purposes of the General Land Register prescribed by Rule 3. Rule 4(1) authorizes classification of land in cantonment, vested in the Government and shall be divided by Central Government or such other authority as the Central Government may empower in this behalf into Class A land which is required or reserved for specific military purpose, Class B land which is not so required or reserved but retained in the cantonment area for the effective discharge of the duties of the Central Government in respect of military administration. Land vested under Section 108 of the Act in the Board shall be called Class C land. The division of defence administered land is finally for determining the control of different types of lands by specified authorities.
Under Rule 5, Class A land is divided into Class A (1) land and Class A (2) land.
The land actually used or occupied by military authorities for the purposes of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers which are the property of Government, parade grounds, military, recreation grounds, grass, farms, diary farms, brick fields, soldiers and hospital gardens are divided and included in Class A (1) land.
Class A (2) land includes such land to the use or occupation for any purpose, there exists specific military objections. Explained, Class A (2) on account of its proximity to Class A(1) land attracts objection for free use and apparently this is for safety and tactical reasons.
Rule 9 deals with jurisdiction of various authorities on Class A (1), Class A(2), Class B (1), Class B (2), Class B (3) etc., and can be tabulated thus:
Class A (1) Military Estates Officer Class A (2) Military Estates Officer Class B (1) Department or Administration in occupation of land Class B(2) State Government in occupation or having control over the land Class B(3) Military Estates Officer Class B(4) Military Estate Officer Rule 14 provides Special Rules for Class A lands and the administrative control of Class A land including detection and prevention of encroachment in the military authorities.
Now, the fact in issue is whether Lake Lines Area and LLR satisfy the requirement of Class A (1) land or not. The petitioners contend by reference to GLSR and the annexurues filed by respondents that LLR is not in Class A (1) land. On the other hand, the admitted position is that LLR covers 2200 metres in length and the same substantially passes through a Bison division, a defence unit. The documents relied upon by petitioners describe one of the boundaries as defence land. The description of one of the boundaries in the sale deeds relied on by the petitioners substantially avoids consideration of proximity of defence land/ area. The LLR divides the golf course. The existence of facilities in Lake Lines Area or LLR is not disputed and this Court refers to a few permissible facilities, bungalows of officers and soldiers, training grounds and these facilities certainly cover the definition of Class A (1) land. Therefore, the administration and control thereof is with the Military Estates Officer, but not the Cantonment Board.
The Act deals with land vested in Central Government and the areas covered by the Cantonment Board. The land vested in the Central Government, kept in the administrative control of defence requirements, is classified as Class A (1), Class A (2), Class B (1) lands etc. The establishment of facilities is inherently done with utmost confidentiality and secrecy. The establishment of facilities need not be publicized by the defence to claim the land as Class A (1) land. It is suffice for the purposes of Rules to include the land on which such facility is established in Class A (1) land. Therefore, whether a particular land is Class A(1) land or comes within the jurisdiction of Cantonment Board is not an issue for a neighbouring land owner to challenge.
LLR is closed on safety and security reasons by defence administration and the closure is called in question by the petitioners. The challenge to closure is rejected both in law and fact.
Before finally parting with the petition, having regard to a few allegations levelled by the petitioners against respondents, this Court is compelled to observe that by nature of its duty and purpose, defence facilities are established, administered and operated at vantage secluded areas by the Governments. The seclusion from civil population ensures secrecy and safety to defence personnel and facilities. The areas under administration of the Military Estates Officer etc., have different priorities in maintenance and administration. These priorities cannot and could not be within the comprehension of petitioners to make sweeping allegations against respondents. Further, the decision of these officers enjoys primacy and is presumed to be in the national interest and security. This Court is of the view that such matters are not justiciable, more particularly having perused the sealed cover produced by 1st respondent. This Court is not inclined to sit in judgment under the power of judicial review on the safety and security concerns expressed by respondents and examine the issue further. The respondents have established that LLR is passing through facilities attracting Class A (1) land description and legally the administration is with the Military Estates Officer and no exception can be taken. The point is answered against petitioners and in favour of respondents.
This Court is of the view that with the sanction of layouts by HMDA in the neighbourhood, without demarcation of defence/ prohibitory areas and proper access to civilian roads leads to problems to all the stakeholders, particularly the Defence Administration. Therefore, it is necessary to direct the Chief Secretary, State of Telangana to issue necessary directions to HMDA and other local bodies where barracks are established or the area is under defence control; to specially restrict the access through private approved layout; not to approve a layout filed with roads passing through defence land and illustrate prohibited areas in the neighbouring land. The 1st respondent is given liberty to communicate this order to the Chief Secretary, State of Telangana and other local bodies for compliance.
For the reasons recorded above, the writ petition fails and is, accordingly, dismissed. No order as to costs.
Consequently, pending miscellaneous petitions, if any, stand closed.
_____________ S.V.BHATT, J Date: 14.09.2016