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Operation Of Roads Within Defence Area Absolute Domain Of Defence Authorities: Gujarat High Court
PRIYANKA PREET
16 Jun 2022 12:54 PM GMT
Observing that it is the 'absolute domain' of the Ministry of Defence to decide the opening or closing of the road which falls in the defence area, the Gujarat High Court has refused to grant relief to the Petitioners complaining that blocking of a road by the defence authorities was causing them hardship in approaching their society / homes."...It is for the army authorities...
Observing that it is the 'absolute domain' of the Ministry of Defence to decide the opening or closing of the road which falls in the defence area, the Gujarat High Court has refused to grant relief to the Petitioners complaining that blocking of a road by the defence authorities was causing them hardship in approaching their society / homes.
"...It is for the army authorities to determine which area is sensitive or more prone to such hazard or which is not or through which a passage can be permitted or not and it is their sole discretion and in absence of any right of any party, a mandate cannot be issued."
The Petitioners averred that the authorities had unauthorizedly and illegally blocked the road. They referred to a policy decision of the Ministry of Defence dated 21.05.2018, seeking the opening of the road. Reference was also made to the Standard of Procedure letter of 2018 to contest that all roads which were situated in the cantonment area were required to be opened and they could be closed in certain contingencies only after inviting public opinions. Further reliance was placed on a communication of 2018 by the respondent authorities wherein the bullock cart road which was closed for civilian public was directed to be opened.
The Petitioners had earlier approached the High Court and the Court had passed an interim order for lifting the barricades and opening the road. However, the Division Bench set aside this interim order of the Coordinate Bench.
The Petitioners submitted that per Sec 258 of the Cantonment Act, 2006, the street within the cantonment area could not be closed for reasons other than the security reasons without inviting public opinion. The concerned street was a Nala (sewer) which had been converted into a Kaccha track in approaching the Sabarmati river for use as a bullock cart road. It was initially used as firing range and later due to growth of residents, it was used as a street.
Per contra, the Respondent authorities submitted that the SoP will not apply since the land in question belongs to the defence and the road cannot be opened. Per the Cantonment and Administration Rules, 1947, the land in question was specifically reserved for military purposes. The land could not be used for any purpose whether a Kaccha or a constructed road which was reserved for exclusive and absolute use for armed forces only.
Justice AS Supehia noted that the Division Bench had struck down the interim order while noting that the land was Class A-1 land of the Army and it was not the only space providing ingress and egress to the Petitioners. The High Court also observed that the Petitioners had also failed to show any right over the property of any nature. The land was being used for the purpose of fortification, barrack stores, arsenals, aerodromes, bungalows etc.
Finally, the Bench opined that it was open for the army to determine which area was sensitive or more prone to such hazard or which passage could be permitted or not. "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 order stated.
Case No.: C/SCA/5767/2019
Case Title: HEMANT RAMESHCHANDRA RUPALA v/s UNION OF INDIA THRU THE SECRETARY
Citation: 2022 LiveLaw (Guj) 218
