Karnataka High Court
Neeta W/O Santosh Shirgaonkar vs Col Shankar Prashar on 20 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 107847 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 107847 OF 2023 (GM-RES)
BETWEEN:
1. NEETA W/O. SANTOSH SHIRGAONKAR,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O: #18/2 B, SAINIK NAGAR,
LAXMITEK, BELAGAVI-590001.
2. NIKITA W/O. SHANKAR METRI,
AGE: 31 YEARS, OCC: SERVICE,
R/O: #182/2/B, LAXMITEK, CAMP,
SAINIK NAGAR, BELAGAVI-590001.
3. NIKHIL S/O. KIRAN PATIL,
AGE: 28 YEARS, OCC: BUSINESS,
R/O: #22, PLOT NO.18/28,
LAXMITEK, SAINIK NAGAR,
BELAGAVI-590001.
...PETITIONERS
(BY SRI. RAVIRAJ C. PATIL,
SRI. SHRIPRASAD J. JOSHI &
SMT. VIDYASHREE I. SULDHAL, ADVOCATES)
GIRIJA A
BYAHATTI AND:
Digitally
signed by 1. COL. SHANKAR PRASHAR,
GIRIJA A
BYAHATTI ADM. COMMANDER,
M.L.I.R.C., STATION HEAD QUARTERS,
BELAGAUM CANTONMENT,
LAXMITEK, BELAGAVI-590001.
2. STATION COMMANDANT,
BELGAUM CANTONMENT,
BELAGAVI-590001.
3. THE PRESIDENT,
CANTONMENT BOARD,
BELAGAVI-590001.
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WP No. 107847 of 2023
4. GENERAL OFFICER COMMANDING IN CHIEF,
SOUTHERN COMMAND, M.L.I.R.C.,
HEAD QUARTERS, KOREGAON PARK,
PUNE, MAHARASHTRA-411001.
5. DEPUTY COMMISSIONER,
D.C. COMPOUND,
BELAGAVI-590001.
6. UNION OF INDIA,
BY ITS DEFENCE SECRETARY,
MINISTRY OF DEFENCE,
NEW DELHI-110001.
...RESPONDENTS
(BY SRI. ARAVIND KAMATH, ADDITIONAL SOLICITOR GENERAL FOR
SRI. SANJAY S. KATAGERI, ADV. FOR R1, R2, R4 & R6;
SRI. K.S. PATIL & A.S. SOMANNAVAR, ADV. FOR R3;
SRI. JAGADISH PATIL, ADV. FOR R7)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS AND DIRECT THE RESPONDENT NO.1 AND OTHER
CONCERNED RESPONDENTS TO OPEN THE LOCK PUT BY THE
RESPONDENT NO.01 ON THE PUBLIC ROAD AT LAXMI TEK
FORTHWITH; ISSUE A WRIT OF MANDAMUS OR ANY OTHER WRIT
AND DIRECT THE RESPONDENTS NOT TO RESTRICT MOVEMENT OF
THE PETITIONERS OR ANY OTHER CITIZEN/RESIDENT ON THE
PUBLIC ROAD ON WHICH THE RESPONDENT NO.1 HAS NOW
RESTRICTED THE MOVEMENT.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 13.02.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 107847 of 2023
ORDER
1. The petitioners are before this Court seeking for the
following reliefs:
a. To issue a Writ of Mandamus and direct the
Respondent No.1 and other concerned Respondents
to open the lock put by the Respondent No. 01 on the
public road at Laxmi tek forthwit.
b. Issue a Writ of mandamus or any other Writ and
direct the Respondents not to restrict movement of
the petitioners or any other citizen/resident on the
public road on which the Respondent No.1 has now
restricted the movement.
c. To grant such other and further reliefs/s as this
Hon'ble Court deems fit and proper under the
circumstances of this petition, in the interest of
justice and equity.
2. The petitioners claim to be the residents of Sainik
Nagar, Laxmitek, Belagavi, adjacent to the
residential quarters of Maratha Light Infantry
Regimental Centre (M.L.I.R.C.) Belagavi. They claim
to be since decades utilizing the road that connects
the road through the residential quarters to many
roads of the city which comes under the C.D.P. of the
Belagavi City Corporation and that it is the only road
which has the direct approach towards the city,
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Schools, Hospitals etc. The other roads add an
additional 4-5 kms to reach the said destination from
the residence of the petitioners. Furthermore, those
roads are not accessible to four wheelers or big
vehicles.
3. A compound wall separated the residential area of
the petitioners with the residential quarters of
M.L.I.R.C. Though there were gates in existence, the
said gates had been kept open for the petitioners and
anybody else to access the road. All of a sudden on
14.11.2023, respondent No.1 is alleged to have
closed the gates and locked them blocking the access
to the main roads and CDP roads. The residents like
the petitioners who were making use of the said
roads are now prevented from using the said road,
which was being used to go to their schools. It is
aggrieved by the same, the petitioners are before
this Court seeking for the aforesaid reliefs.
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4. Sri. Shriprasad J. Joshi, learned counsel for the
petitioners would submit that;
4.1. Respondent No.1 has no authority to close the
said road, which has been used for decades.
His action is arbitrary and a misuse of the
powers and authority vested with him,
impinging the fundamental rights of the
petitioners enshrined in Article 19(1)(b) of the
Constitution of India, which restricts public
movements on the roads possessed by the
Cantonment Board. He contends that the said
road is neither owned nor it has been
constructed by the army, but it is the Belagavi
City Corporation.
4.2. He submits that the road being in use by the
general public for last 80-100 years, the
respondents have no authority or right to close
the public road and curtail the fundamental
rights of the petitioners.
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4.3. The land in question is not the one which is
classified as Class 'A' land nor is it reserved for
any specific military purposes. It being only a
road, the general public are required to be
allowed to use the said road.
4.4. In this regard he relies upon the decision of
the Division Bench of this Court in the case of
Dr.Nitin G. Khot and Others Vs. Station
Commandant, Belgaum, ILR 1998 KAR
2194, more particularly paragraphs 2,6,7,10,
12 and 15, which are reproduced hereunder
for easy reference:
2. Such a golden right enshrined in Article
19(1)(d) of the Constitution was alleged to
have been violated by the respondent Army
Authorities in the City of Belgaum, a peaceful
and historic city located in the North-West of
Karnataka. It is alleged that the Army
Authorities have completely closed 16 roads
in the city resulting in not only the
inconvenience to the residents of the city but
also the population living around the city who
have been illegally prevented from using the
roads. The 16 roads regarding which the writ
petition was filed are:
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1.Nagzari Road/ Albert Ekka Road/
Pandurang Salunke Marg.
2. Laxmi Mandir Road.
3. Esedar Road from Maj. Ramaswamy
Avenue to Thimmayya Road.
4. Parade Road/Burj Road.
5. Rajendra Singhji Road.
6. Arsenal Road/Hoshiar Singh Road.
7. Frere Road.
8. Race Course Road/Point Road.
9. Ramghat Road.
10. Namdev Jadhav Road.
11. Thimmayya Road.
12. M.H. Road/K.V. Road.
13.Havlock Road/O.P. Malhotra Road.
14. Gymkhana Road.
15. Nolhan Marg.
16. Hilli Road.
6. It has been conceded on behalf of the
respondents before us that the roads, the
subject-matter of dispute, were governed by
the Cantonment Rules. Rule 4 of the
aforesaid rules refers to the classification of
land in a Cantonment area. It provides:
"Classification of land.-- For the purpose
of the General Land Register prescribed
by Rule 3.--
(a) land in the cantonment which is
vested in the crown 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
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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.
(i) Land in cantonments must fall into one
or other of three main categories, namely.-
1. Land which "is vested with Central
Government (Classes 'A' and 'B';)
2. Land which "is vested in the
Cantonment Board" (Class 'C';)
3. Land which falls into neither of the first
two categories.
(ii) Land in category (1) may be either.-
(a) Class A(1) land, that is land in the
active occupation of the Army.
(b) Class A(2) land, that is land which for
specific military reasons must be kept
vacant and must not be built over.
(c) Class 'B' land, that is land which,
though not actively occupied by the Army
nor reserved against building, yet must
be retained in the cantonment is primarily
a place of residence for troops and it is
the duty of the Government of India, in
the interests of the troops and of the civil
population which is essential to the
welfare of the troops, both to provide
them with amenities such as postal,
telegraphic and railway communications,
rest houses, bungalows, shops, places of
amusement, open spaces, agricultural
produce and so forth; and also to keep in
their hands a sufficient area to meet all
possible future requirements that may
arise in the course of the efficient
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discharge of their duties in respect of
Army administration.
(iii) Land in category (2) is land which in
the words of the Act, is required for "local
public purposes" of a municipal nature,
such as streets, markets, hospital,
rubbish depots and so forth.
(iv) Land in category (3) is private land
over which neither the Government nor
the Cantonment Board posses any
proprietary rights.
Rule 5 provides:
"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 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".
Similarly Rule 9 deals with the
management of Class A(1) land and
provides that except for such areas or
class of areas as may from time to time
be declared by the Central Government
to be under the immediate management
of the Military Authorities themselves
shall be entrusted to the Military Estate
Officer. Rule 13 provides that the Military
Estate Officer shall maintain plans and
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schedules of lands in Class Ad) and A(2)
lands for each cantonment. Rule
13(3)(i)(d) 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. Rule 14
provides special Rules for Class 'A' lands.
According to this rule the administrative
control of Class 'A' land including the
detection and prevention of
encroachments thereon, shall vest in the
Military Authorities for the time being in
occupation of the land and the
administrative control of Class A(2) land
vests in the Central Government. It
further provides:
"The control of Class 'A' land mentioned
in sub-rule (1) of this rule is to be
distinguished from the management
referred to in Rule 9. The intention is
that Class 'A' lands shall be entirely
under military as distinct from
cantonment and civil control, but subject
to this distinction, the actual
management of certain Class A(1) lands
is entrusted to the Military Authorities
themselves under sub-rule (1) of Rule 9,
while the remaining areas of Class A(l)
land and all Class A(2) lands are
entrusted to the management of the
Military Estates Officer.
Unless and until the Military Authorities
raise the question of relinquishing any
lands in Class A(1) which are under their
immediate management, the Military
Estate Officers have no functions to
perform with regard to such lands except
to maintain a proper record of them as
laid down in Rules 3 and 13".
7. To resist the claim of the appellants it has
been argued on behalf of the respondents
that they have not closed any roads but have
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only enclosed their campus area, meaning
thereby that the members of the public have
been disallowed to use the roads within the
campus. It is further submitted that the
roads are not cantonment roads, but private
roads formed and maintained by the Military
Authorities for their use over which the
appellants or any other person have no right.
It is contended that the roads in question
coming within A(1) land were the property of
the Army Authorities regarding which the
respondents had absolute right to deal in the
manner they like. It is further contended that
the appellants have no right under Article
19(1)(d) of the Constitution to maintain the
present petition. It is apprehended that if
such a right is conceded, a person may claim
right in sensitive defence establishments
resulting threat to the nation's security. The
respondents further contend that the Military
Authorities are entitled to protect their
private property just as a private owner can.
The pleas raised by the appellants are
termed to be based upon disputed questions
of fact which could not be adjudicated by this
Court in exercise of writ jurisdiction.
10. As the land has been held to be the
property of the Central Government, the
respondents were under the legal obligation
to justify their action of putting the
restrictions, particularly when it has been
conceded before us that the aforesaid lands
had for years been used by the citizens of
Belgaum and adjoining areas. The
respondents have not referred to any
authority of law or specific order of the
Central Government putting such restrictions
resulting in curtailment of the right of
freedom of movement enshrined by Article
19(1)(d) of the Constitution. Restrictions
contemplated under Article 19(6) of the
Constitution are such restrictions which are
imposed by any law or in exercise of the
powers vested in an authority under a valid
law. Admittedly, the impugned restrictions
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have not been imposed by any statutory
provision or under the authority of a Statute.
Such restrictions, therefore, cannot be
termed to be reasonable restrictions within
the meaning of clause (6) of Article 19 of the
Constitution.
12. Assuming but not conceding that the
lands belonged to the Army and that they
could deal with it in the manner they like
under the rules, we are of the opinion that
such a submission cannot be made the basis
for rejection of the claim of the appellants.
Class A(1) lands are such lands which are in
the active occupation of the Army. The public
roads cannot be termed to be in active
occupation of the Army. Under Rule 5, Class
'A' land is such land which is actually used or
occupied by the Military Authorities for the
purposes of fortification, 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.
Admittedly, the lands used for the purposes
of roads are not such lands which are used
for any of the purposes referred to herein
above. The land used for the purposes of
roads, therefore, cannot be termed to be
Class 'A' land, authorising the Army
Authorities to make regulations regarding its
user. Rule 13(3)(i)(d) also 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. In presence of Rules
5 and 13 the respondent authorities cannot
claim the exclusive right of manning,
managing and regulating the control of the
roads allegedly belonging to them. Sub-rule
(3) of Rule 14 clearly and unambiguously
provides that lands in Class A(1) shall not be
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used or occupied for any purpose other than
those stated in sub-rule (1)(i) of Rule 5
without the previous sanction of the Central
Government or such Authority as they may
appoint in this behalf. Temporary use of such
lands can be permitted by the authorities for
storage of materials by contractors for the
purposes of carrying out Government work.
Admittedly the roads in dispute are not being
used for the purposes specified in Rule
5(1)(i) of the Rules.
15. During the pendency of this writ appeal,
interim stay was granted by the Court on 12-
8-1997. The aforesaid stay though claimed to
have been implemented by the Army
Authorities has not in any way adversely
affected the security of the forces living in
the cantonment areas. It may be specifically
pointed out that except for the main roads,
this Court is not concerned with other roads
which are used and maintained by the Army
for the purposes connected with or ancillary
to the purposes specified in Rule 5(1)(i) of
the Rules. In the absence of legislative
authorisation of putting restrictions, the
respondents have apparently acted without
jurisdiction. Despite our directions no specific
order regarding imposition of the restrictions
was produced.
4.5. By relying on the above judgment, he submits
that there is no declaration by the Central
Government entrusting the road to the Military
Estate Officer. Therefore the Military Estate
Officer would not have any jurisdiction over
the concerned Road.
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4.6. The said road had been used by citizens of
Belagavi and adjoining areas. The restriction
now sought to be imposed is by way of an
executive order of the Station Commandant
and not by any legislative enactment or the
like and as such, the fundamental right under
Article 19(1)(d) of the Constitution of India
cannot be restricted by such an executive act.
4.7. The road having been used by the general
public, more so the children to go to schools
etc., such usage over a long period of time has
nullified any claim on the part of Military
Authorities and therefore, the said use cannot
be restricted by way of an executive order.
4.8. The land of the road on which it is situated, is
not used for any sensitive military activities.
Till now the usage of the road has not caused
any trouble and therefore, it is contended that
further use by students to use the said road to
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go to their schools and the use of the said
road by residents of the area will not cause
any harm or injury to the Military Authorities.
4.9. On these grounds he submits that the interest
of citizens would have to be protected by
permitting the citizens to continue to make
use of the road which they had been using for
a long period of time and the reliefs sought
are required to be granted.
5. Sri. Aravind Kamath, learned Additional Solicitor
General of India, would submit that;
5.1. The land in question has been classified as
Class A-1 land under the Cantonment Land
Administration Rules, 2021 and the same is
not a 'public place' within the definition of
Cantonment Act, 2006. The petition itself is in
the nature of Public Interest Litigation and not
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a private Interest Litigation. As such the
present petition is not maintainable.
5.2. The classification as Class A-1 land would
indicate that the said road is reserved
specifically for military purposes. It is only
Class 'C' land which is vested with the
Cantonment Board. Class ʼAʼ land continues to
be vested with the Station Commandant. The
boundary compound wall has been constructed
long ago in Survey No.183. There has been a
gate in the place for a long period of time and
the gate has been put up along with said
boundary wall, which cannot be found fault
with. The land having been classified as Class
A-1 land, the land vests with the Ministry of
Defence. The landlord is the Central
Government managed by the Ministry of
Defence.
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5.3. The said road is not the only Road providing
access to the petitioners to the city. There are
various other roads which can be made use of
by the residents. The road has been closed
since in the said area Military Authorities are
having Commando Training Area, Living
Accommodation of Troops, Married
Accommodation of Officers, Junior
Commissioned Officers and other Ranks
accommodation. The said road is not meant
for public purpose.
5.4. The gate has been installed only to provide
access to Military Engineer Service Personnel,
since on the other side there is overhead tank
which is also located in the Military Area and
the gate is used only for such person and not
for general public.
5.5. The land being classified as Class 'A' land, the
general public cannot claim any right of
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ingress and egress over the same.
Representations submitted by the petitioners
and certain others have been answered by the
respondent No.1 on 28/04/2023.
5.6. There being other Municipal Corporation roads
provided, it is for the general public to make
use of such roads and not the roads within the
Army campus. These documents have been
purposely withheld by the petitioners and
urgency sought to be made out by the
petitioners, when there is none.
5.7. The petitioners have also sought to produce
photographs to try and evoke sympathy when
none lies. The neighbouring residents cannot
be permitted to use the road in a sensitive
location.
5.8. In terms of the Army Service Regulations
(Defence Service Regulation) No.419, the
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security and other custody of the army
installation is vested with respondent No.1
Commandant, who has exercised such powers,
which cannot be found fault with.
5.9. He relies upon the decision of the Gujarat High
Court in the case of Hemant
Rameshchandra Rupala Vs. Union of India
and others in W.P.No.5767/2019 decided
on 07.06.2022, more particularly para 8
thereof, which is reproduced hereunder for
easy reference:
8. The present writ petition has been
premised only on the letter dated
21.05.2018, which prescribes the SoP for
closure of roads in cantonment. It refers to
the "closed roads" in the cantonments. As
held by the Division Bench, the land in
question is a defence land of category A-1
and the said SoP does not remotely
prescribe the procedure for the land of
defence, which falls in the category of A-1
as per the Rules. Hence, the reliance placed
by the petitioners on the communication
dated 21.05.2018 is misconceived. In view
of C/SCA/5767/2019 ORDER DATED:
07/06/2022 the aforesaid observations
made by the Division Bench and the
communications which are referred by the
petitioners, more particularly, dated
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02.05.2019 and 04.10.2018, which
specifically indicated that there is a bullock
cart road and a Nala road which is used by
the public. It is not the road constructed by
the cantonment, but is a cart road which is
converted from a nallah (sewer). There is
no constructed road, either by the defence
or by the cantonment. It is pertinent to
note that the status of the land in which the
same falls has not been altered for all these
years. It remains the same after passing of
the judgment by the Division Bench. Thus,
in facts and the circumstances of the case,
neither the provision of section 258 of the
Cantonment Act nor the SoP of letter dated
21.05.2018 will apply to the land belonging
to category A-1 of the defence land. Hence,
this Court is not inclined to grant any relief
to the petitioners, as it is in the absolute
domain of the respondent authorities to
exercise their discretion with regard to
opening or closing of the road which falls in
the defence area. The reliance placed on
the decision of Allahabad High Court in the
case of Janardan Sharma and others
(supra) by the learned advocate for the
petitioners will not come to rescue to the
present petitioner, in view of the
observations made by the Division Bench,
which have become final as the same has
not been challenged by the residents of the
society before the higher forum".
5.10. The judgment of the Division Bench of the
Hon'ble Gujarat High Court in the very same
matter in Writ Appeal No.4/2024 dated
04.01.2024, more particularly paras 4 and 5
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thereof, which are reproduced hereunder for
easy reference:
4. Having noted all the above, we have gone
through the Rules of 1937 placed by Mr.
Divyesh Sejpal, the learned counsel
appearing for the respondent No.2. A perusal
of the said Rules of 1937 indicate that they
are framed in exercise of the powers
conferred by Section 280 of the Cantonments
Act, 1924 in the matter of administration of
the land in the cantonment area. Rule-3
provides for the maintenance of A General
Land Register. Rule-4 further provides for
classification of land for the purposes of the
General Land Register prescribed by Rule-3.
Clause (a) of Rule-4 states that the 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. Clause (b) of Rule-4 states
that the land which is vested in the Board
under Section 108 of the Act shall be called
class "C" land. Rule-5 provides for further
division of the land into two sub-classes
namely, Class "A" (1) and Class "A" (2).
Clause (i) of Rule-5 classifies the land which
is actually used or occupied by the Military
Authorities, for the purposes of fortifications,
barracks stores, arsenals aerodromes,
bungalows for military officers which are the
property of 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
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for the Army in India and other official
requirements of the Military Authorities;
whereas Class "A" (2) land is 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. Rule-9 provides for management
of Class "A" (1) land and states that 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 whereas management of
Class "C" land vest in the Board under
Section 108 of the Act. From the reading of
the above Rules, it is more than evident that
Rule-14 of the Rules of 1937 further provides
for the administrative control of Class "A"(1)
land and states that the administration
control including the detection and
prevention of encroachments thereon shall
vest in the Military Authorities for the time
being in occupation of the land. The Military
Estate Officer is mandated to conduct his
management of Class "A" (1) land which
includes the development of the resources of
the land, the disposal of usufruct and the
planting and maintenance of trees, etc.
Clause (3) of Rule-14 further states that the
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.
5. By reading all the Rules of 1937, it is more
than evident that the Cantonment Board has
no control over the management or
supervision of the land falling in category
Class "A"(1), which is actually used or
occupied by the Military Authorities for the
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purposes prescribed in Clause (i) of Rule-5 of
the Rules of 1937.
5.11. By relying on the above, he submits that Class
A-1 land can be used or occupied by Military
Authorities only. It is not the Cantonment
Board which would have supervisory power
relating to the same, but the Military
Authorities prescribed in clause (i) of Rule 5 of
the Cantonment Land Administration Rules,
1937 (now 2021 Rules) and it is only the
Military Authorities, who can decide which area
is sensitive or not.
5.12. Insofar as the decision of Division Bench of
these Court in Dr.Nitin G. Khot (supra), he
submits that the same is not applicable to the
present case, since the road in question does
not link with any main roads of the Belagavi
City. The said judgment though was also
dealing with the very same cantonment area,
it is only the specific roads stated therein,
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which have been declared to be public roads.
The Division Bench has consciously not
adverted to any other road, thus, the
petitioners cannot claim that the decision in
Dr.Nitin G. Khot (supra) case would apply to
the present road.
6. Heard Sri.Shivaprasad J. Joshi, learned counsel for
the petitioners, Sri. Aravind Kamath, learned
Additional Solicitor General for respondents No.1, 2,
4 and 6, Sri. K. S. Patil learned counsel for
respondent No.3 and Sri. Jagadish Patil, learned
counsel for Respondent No.7. Perused the papers.
7. It is not in dispute that there is a Belagavi
cantonment area which has been established. It is
also not in dispute that the layout in which the
petitioners claim to be residing is not in the
cantonment area, but it is besides and abutting the
cantonment area.
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8. The claim of the petitioners is that, they were using
the road going through their layout into the
cantonment area, to access various facilities
including Hospital, Schools etc., which has now been
closed, causing inconvenience to the residents. The
basis of the claim of the petitioners is Article
19(1)(d) of the Constitution of India and that the
land is not classified as Class 'A' land and the road
not being one which can be classified as Class 'A'
land, the general public ought to be allowed to use
the same.
9. What is required to be ascertained now is regarding
classification of the land. Respondents have produced
the extract from the General Land Register or
otherwise called GLR, which indicates that the land in
Survey No.183 measuring 38.500 Acres had been re-
classified from A2 to A1 vide Govt. of India Ministry
of Defence dated 10.10.74 and 18.11.1974 and
placed under the Management of Ministry of Defence
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(Q.M.G.) for the purpose of construction of
accommodation for separated families of 100 JCOs
The boundary of the land in survey No.183 is where
the compound wall has been constructed and the
road situated therein and a gate has been put up.
10. Survey No.78 which had been earlier classified as B-
4 was re-classified as A-1 vide Government of India
Ministry of Defence letter dated 20.02.1978 and has
been reserved for training purposes. This land is
where it is claimed the Commando Training Centre
has been established.
11. The neighboring land in Survey No.78-B is also
stated to be re-classified from B-4 to A-1 for the
purpose of construction of Accommodation for
Separated Families of 128 OR and 20 NCSE, vide
Government of India Ministry of Defence letter dated
10.10.1974 and 18.11.1974. The road is stated to
proceed through this land and goes towards
Commando Training Centre.
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12. A perusal of the photographs that have been
produced would indicate that the petitioners'
residential houses are situated outside the compound
wall. A representation had been given by the
petitioners on 13.03.2023 to respondent No.1, in the
said representation, it has been categorically stated
that the residential colony for army personnel has
come up on both sides of the road leading to the
colony of the petitioners and the solution offered by
the petitioners is to build a compound wall on either
side of the road to safeguard the army personnel and
provide access to the petitioners to access the said
road.
13. The said representation was rejected by the Station
Staff Officer on 28.04.2023, stating that large
number of complaints had been received by office of
Station Staff Officer, wherein certain miscreants had
disturbed the ladies residing in the residential
quarters by knocking the doors and windows at night
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and running away and that the residents of the
colony regularly throw garbage filled polythene bags
into the residential colony, some of the residents use
the road for waking their pets which defecate in the
residential area and the said pets have also many a
times scared the residents, more particularly the
children, the residents of the colony do not adhere to
the traffic rules, are overspeeding and there is
potential cause of risk/mishap causing risk to the
army personnel residing in the area and indicated
that the gates would open from 0500h to 2000 hrs
for usage by the residents and will be closed
thereafter, for security reasons. The said response
reads as under:
150/4/G 28 April 2023
Smt. Neeta Shirgaonkar
House NO.182/2B
Laxmi Tek
Belgavi - 590 001
ARBITRARY AND UNAUTHORISED CLOSURE OF A
ROAD IN BUDA SCHEME NO.41 BY ARMY PERSONNEL
1. Refer your letter dated 13 Mar 2023.
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2. It is intimated that the gate for which 24
hours access is being sought is on A-1 defence
land. This access to your colony is through a
residential family accommodation of the Army. A
large number of complaints have been received by
this office wherein some miscreants have come and
disturbed ladies whose husband is away on duty by
knocking on doors/windows at night and running
away. The safety of our families is our primary
concern especially when the service personnel is
away on duty.
3. Further residents of your colony throw
garbage filled polythene bags in our residential
colony. Also come residents of your colony have
been seen walking their pets in our residential
colony. These pets defecate in our residential
areas which is unhygienic. Also, the pets scare the
children in the area.
4. Most residents of your colony do not adhere
to traffic rules to include overspending, not wearing
of helmets, etc while plying their conveyance inside
the colony. Wards of defence personnel play inside
our compound and overspeeding private vehicles
are a potential cause of mishap/risk to lives.
5. Your colony has an access provided by the
Municipal Corporation and the access from our side
is not the main access. Issues pertaining to non-
maintenance of the access road to your colony may
please be raised with the concerned authorities.
6. The above aspects were explained to the
group of people from your colony who met us at
hour Headquarters.
7. Notwithstanding the above, the gates are
open from 0500h to 2000hrs. Post 2000hrs the
gates are closed due to security concerns.
8. For your information please.
(Atul Salukhe)
Colonel
State Staff Officer
For Station Commander
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14. In view of the said reply of the Station Staff Officer,
the only issue that remains for consideration is
whether the Army Authorities have the right to close
the road from 8:00 p.m. to 5:00 a.m.
15. The aspect of the land being classified as Class A-1
reserved for military proposes and being beyond the
control of the Cantonment Board cannot also be
disputed. Essentially, the said land would come
within the purview of the Commandant of the Military
Area once it is out of the jurisdiction of the
Cantonment Board.
16. What the respondents have done is not the closure of
the road completely for all times, but only closure
from 8:00 p.m. to 5:00 a.m. This cannot in my
considered opinion be said to be unreasonable or
violation of the rights under Article 19(1)(d) of the
Constitution of India, as sought to be made out by
the learned counsel for the petitioners.
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17. The road being situate in the military area it is but
required for anybody using the said road in a proper
way and not to disturb the residents of that area.
This requirement would not only be in respect of a
road in a military area, but for usage of any public
road.
18. Taking into consideration that there are houses which
have been constructed for usage by separated
families and spouses of persons who are serving in
the front would be residing in these quarters. The
Commandant has thought it fit to close the road from
8:00 p.m. to 5:00 p.m. which cannot be said to be
unreasonable.
19. In that view of the matter, the commandant having
the jurisdiction and authority to decide on the
manner and methodology of usage of the land
classified as Class A-1, which is evident from the GLR
which has been produced, the action taken by him
cannot be found fault with.
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20. As such I pass the following:
ORDER
i. Writ petition is dismissed.
ii. The petitioners shall make use of the road from
5:00 a.m. to 8:00 p.m. in a manner which does
not disturb the residents of military area of the
separate family quarters and/or any activities
being carried out in the said area.
Sd/-
JUDGE
gab
Ct-mck
