IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 35974 of 2009(S) -------------------------- PETITIONER: -------------- P.M. MUJEEB RAHMAN, ADVOCATE, PARAPPATH HOUSE, VIDAKKUZHA, THAIKKATTUKARA P.O., ALUVA. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: ----------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY FOR DEFENCE, GOVERNMENT OF INDIA, NEW DELHI. 2. THE COMMANDER IN CHIEF, SOUTHERN NAVAL COMMAND, WILLINGDON ISLAND, KOCHI. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE COMMISSIONER OF POLICE, KOCHI. R1 & R2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R3 & R4 BY SENIOR GOVT. PLEADER, SRI. BENNY GERVASIS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2010, ALONG WITH WPC NO. 6421 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2010 JUDGMENT J.Chelameswar, C.J. These two writ petitions are interconnected. W.P.(C) No. 35974 of 2009 is filed by an individual who is a Municipal Councilor of Kalamassery Municipality. Whereas W.P.(C) No.6421 of 2010 is filed by two petitioners; the first of the two is a registered Society under the provisions of the Kerala (Literary, Scientific and Charitable) Societies Act and the second petitioner is a resident of the abovementioned Municipality. Both the writ petitions are professedly filed to vindicate public interest. The relevant facts are as follows. 2. A Naval Armament Depot came to be established during the year 1958 in Edathala Grama Panchayat near the abovementioned Municipality in an extent of about 396 Acres of land which was acquired for the purpose of the establishment of the abovementioned Armament Depot. In W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:2:- order to provide an appropriate access to the said defence establishment, as it was necessary to have the both rail and road connection, an extent of 148 Acres of land was further acquired and rail-cum-road was constructed and has been housed for the purpose of transportation of arms and ammunition and passage of the vehicles connected with the abovementioned establishment. 3. According to the counter affidavit filed on behalf of Union of India and the Commander in Chief, Southern Naval Command by the Chief Staff Officer(Personnel and Administration), there was not much of an activity around that area at the point of time when the Depot was established and the road was laid. But, subsequently some residential buildings came into existence around that area. It is also admitted by the said counter affidavit that the inhabitants of those buildings “were using the land for egress and ingress to their residential buildings”(paragraph 6 of the counter affidavit). It is also stated in the counter affidavit that under the Kerala Municipality Building W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:3:- Rules, any development of land or construction of a house within a distance of 100 ms in the defence land, an appropriate No Objection Certificate (NOC) from the head of such defence establishment is to be obtained and it is asserted in the counter affidavit that no such NOC is obtained in the case of the buildings which came up around the above establishment. 4. It is in the background of the abovementioned facts these two writ petitions came to be filed when the authorities of the NAD proposed to construct a wall on either side of the property through which the road passes. The petitioners in both the cases claim that the residential houses located on either side of the abovementioned road have no other access except the said road. Therefore, the decision of the NAD authorities to enclose such a road would be contrary to the “public interest”, i.e., the interests of the inhabitants of the various houses located within the vicinity of such road and they seek that Exts.P2 and P5 representations, insofar as W.P.(C) No. 35974 of 2009 is concerned, be considered and also to stop the work of the W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:4:- construction of the compound wall referred to above. 5. Ext.P2 is a short representation made to the Hon'ble Minister for Defence, Union of India which reads as follows: “We are residing in the locality which is very adjacent to the property belonged to the Naval Armament Depot, Aluva, Kerala. We are socially and financially backward people and most of us are coolie laborers living with our limited means. Our predecessors also resided in the locality by the time immemorial even before the establishment of the NAD at Aluva. We enjoyed the uninterrupted and continuous possession and enjoyment of the roads and passages to our property through NAD land. We have no other passage to the main road and all of us are depending upon the passages for ingress and egress to our land. Now the NAD authorities decided to construct compound wall around the property of NAD. This act of NAD will curtail the right of enjoyment of our property and the life in the locality will become difficult. The said act of NAD will deny our passage which we enjoyed by time immemorial even before the establishment of NAD and it will amounts to the denial of natural justice to us and also denial of our right to enjoyment of property. Moreover some religious institutions also situates therein. If the authorities are not willing to provide sufficient road facility to us, it will affect the life in the locality and amounts to the denial of natural justice these poor people. Hence we hereby humbly request you to consider the W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:5:- prayer and to take necessary action to provide sufficient passages to our property. We hereby enclosed a rough sketch of our locality.” Ext.P5 is the representation made to the Secretary, Defence, Government of India, in substance seeking a similar relief from the Secretary. 6. Coming to W.P.(C) No. 6124 of 2010, the prayers are as follows: “a) Issue a writ of mandamus or other appropriate writ, direction or order compelling the respondents 1,2 and 4 to implement Ext.P1 and P2 forthwith. b) Issue a writ of mandamus or any other appropriate writ, direction or order compelling the 2nd respondent to hand over NAD road to the 4th respondent and directing the 4th respondent to take over the NAD road in term of Exts.P1 and P2 forthwith. c) Issue a writ of mandamus or appropriate writ, direction or order compelling the respondents 1, 3 and 4 to take appropriate steps immediately to develop and widen NAD road as expeditiously as possible.” 7. Ext.P1 is again a letter allegedly addressed to a member of the Parliament on 06.09.1995 by one Mr.K.A.Nambiar, whose designation is not indicated in the above W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:6:- letter, but it is asserted by the petitioner that he was the then defence Secretary and the relevant portion of which reads as follows: “3. As regards handing over the NAD road to Kalamassery Municipality, we have no objection to the proposal provided the same is widened and improved. I have requested the Chief Secretary, Kerala to direct the municipal authorities to chalk out a time-frame for widening, strengthening and conversion of the road into a two lane traffic by the municipality. Modalities in this regard will be worked out by NAD and the municipal authorities in a manner that neither the NAD nor the public would be adversely affected in the long run.” 8. Ext.P2 is a Government Order, GO(Rt) No.6207/95/LA dated 18.11.1995 of the State of Kerala. The relevant portion reads as follows: “The Special Officer, Kalamassery Municipality in the reference read as 1st above had informed the Government that the Municipality is willing to take up the maintenance of the Kalamassery, Edathala Road, now under the control of the Ministry of Defence Government of India and over which a restriction was imposed by the Naval Armament Depot permitting plying of trucks carrying only 4 tonnes. Considering the hardship caused to the public in the locality, Municipal Administration have recommended the request of the Kalamassery Municipality. W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:7:- Accordingly government had taken up the matter with the Defence Ministry and the Defence Ministry vide their letter read as 5th paper above has on certain agreed to handover the road to Kalamassery Municipality on certain conditions. Government have examined the matter in detail and are pleased to permit, the Kalamassery Municipal Council to take over the Kalamassery-Edathala Road(NAD road) of 5 km Naval Armament Depot authorities for widening and maintenance the same in consultation with the Naval Armament Depot authorities.” 9. The content of the said order, in our view, is 'interesting'. After taking into consideration the restriction imposed by the NAD on the plying of certain vehicles on the road, which is in dispute in these writ petitions, and also taking into consideration the “willingness” of the Kalamassery Municipality to take up the maintenance of the said road, the Government claims to have had taken up the matter with the Defence Ministry. The most interesting part is the recital contained in the last sentence of the first paragraph which reads as follows: “Accordingly government had taken up the matter with the Defence Ministry and the Defence Ministry vide their letter read as 5 th paper above has on certain agreed to handover the road to Kalamassery Municipality on certain conditions.” W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:8:- We may point out that the sentence does not convey any meaning. We are not on the accuracy of either the language employed or the Grammar of the sentence but, it plainly does not indicate any meaning to us. More interesting is that the sentence refers to '5th paper read above' in the said order, whereas the said order refers only to four papers. In the said background the State of Kerala issues an order obviously in exercise of the power under Article 162 of the Constitution of India and thereafter proceeds to permit the Kalamassery Municipality to widen and maintain the Kalamassery-Edathala road(NAD road) in consultation with the Naval Armament Depot authorities. 10. Since the matter is being disposed of at the admission stage, even without notice to the State of Kerala, we are not recording any conclusive findings on the abovementioned Government Order. The abovementioned Government Order relied upon by the petitioner is not the one original Government Order, but a copy allegedly authenticated by the counsel for the petitioner. We have our own doubts about the authenticity of the W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:9:- said document. Assuming for the sake of argument that such an order came to be issued by the State of Kerala (we emphasis we only assumes for the purpose of this order), we are of the opinion that such an order is of highly doubtful efficacy, as the order purports to create rights and obligations on the property which is admittedly vested in the Union of India. 11. Coming to Ext.P1 document insofar as W.P.(C) No. 6124 of 2010 is concerned, no doubt that the document does contain a statement. It purporting to convey that there was no objection to handover the NAD road to the Kalamassery Municipality, but the document does not create any specific legal right or obligation insofar as the abovementioned road is concerned, as the property is vested in the Union of India. If property is to be alienated, an appropriate legal procedure is required to be followed and nothing is brought to our notice that such a legal procedure was followed and the property was transferred and vested in the Kalamassery Municipality. On the other hand, in the counter referred to earlier it is stated at W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:10:- paragraphs 14 and 17 as follows: “In the light of prevailing security scenario and NAD being considered as a sensitive defence establishment besides the said sanctioned work is essential from safety as well as security point of view.”(paragraph 14 of the counter affidavit) “In this regard Alwaye police letter regarding threat to organization and extract of Mangalam Newspaper dated 13 Feb 2010 which has reportes arms training of terrorists near NAD(A) are produced herewith and marked as Exhibit 16 & 17. There is a clear need to demarcate defence land especially at NAD(A) both from the security as well as safety of the public point of view in addition to discharging the duty imposed on the respective authorities to protect Govt. property.”(paragraph 17 of the counter affidavit) 12. The substance is that exposing the road in question to an unrestricted public access would imperil the safety of the NAD which in turn would mean a grave risk for the defence of the country. An aspect of the administration with which Courts should be very hesitant to interfere with, unless compelled by a much higher legal obligation arising out of the Constitution. 13. On the other hand, the pleadings in the writ petition are absolutely silent as to how so many residential W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:11:- buildings came up around the area without any other access to any other public road. The petitioners are absolutely silent whether these residential buildings came up on any approved lay out. As according to the petitioners, all these buildings are within the limits of the Kalamassery Municipality. Goes without saying that no building can be built up in any municipal area without an appropriate sanction of lay-out for the locality. A sanctioned lay-out presupposes creation of necessary roads providing access to the inhabitants of the locality to the other parts of the Municipality. 14. The petitioner in W.P.(C) No.35974 of 2009, who claims to have filed the writ petition in public interest, is admittedly a municipal councilor of the abovementioned Municipality. By virtue of the said fact he has an obligation to ensure the implementation of the relevant laws applicable to the Municipality and in the context of the present case dealing with the Town Planning and sanction of lay out within the municipal limits. On the other hand, it is stated in Paragraph 20 of the W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:12:- counter affidavit as follows: “20. Various attempts were made by some of the persons with vested interest in the name of the local inhabitants under leadership of the petitioner, such as the blockage of the NAD Vehicles with employees and prevented them from proceeding to duty and it was virtually keeping them as hostages. Accordingly, a First Information Report (FIR) was registered by the police for the unlawful action of the said persons. A photostat copy of the F.I.R in Crime No.723/2008 of Kalamassery Police Station registered in the Court of the Judicial First Class Magistrate Court, Aluva is produced herewith and marked as Exhibit R-19. In Exhibit R-19 F.I.R the petitioner in this case is the prime accused in the Crime. Further there was an attempt on the part of the Petitioner in his capacity as the member of the Local Municipal council to encroach upon the Defence property under the guise of repairing the road. As a matter of fact, the NAD authorities have already addressed communication to the Secretary, Kalamassery Municipality regarding the unauthorised dumping of crushed stone to construct approach road in the Defence land near Pipeline by the Petitioner. A photostat copy of the letter No.AAQ/7013 dated 26.03.2008 issued by the Assistant Manager(Works), NAD to the Secretary of the Kalamassery Municipality is produced herewith and marked as Exhibit R-20.” 15. No reply is filed by the petitioner denying the various allegations made against him in the said paragraph. In the circumstances, on that one ground alone the said writ W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:13:- petitioner in W.P.(C) No.35974 of 2009 should be debarred from pursing the case. A person who is obliged under the law by virtue of his holding a public office to ensure certain statutory obligations are enforced cannot be heard to speak of public interest when he does not explain as to his role in the coming into existence of a situation such as the one in hand. Instead of discharging the obligations as an elected representative of the Municipality, it appears that the petitioner is resorting to activities which are questionable. We do not propose to say anything further in this regard as certain criminal cases are said to be pending against the petitioner. 16. It is repeatedly submitted by the learned counsel appearing in both the writ petitions that the road in question is a public road and therefore the reliefs such as the one sought in the writ petitions are to be considered. We fail to understand the petitioners' concept of a public road. The facts narrated above clearly establish that the road in question is exclusively made for the use of NAD. Insofar as the Kerala Municipality Act is W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:14:- concerned, the expression “public street” is defined under Sub- section 34 of Section 2 which reads as follows: “(34) “Public street” means any street, road, square, court, alley, passage or riding path over which the public have a right of way, whether a thoroughfare or not, and includes- (a) the roadway over any public bridge or causeway; (b) the footway attached to any such street, public bridge or causeway; and (c) the drains attached to any such street, public bridge or causeway and the land whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or properly belonging to the Government;” 17. The essence of the matter is that to be called a public street, it must be a piece of land over which the public have a right of way, the right which is known to law but not as presumed by the petitioners. In the worst case scenario, if some of the inhabitants around that locality have any semblance of right on the road, (we can guess in the context) it can only be an easement either of necessity or by prescription. In either case it is required to be properly averred and factually established on W.P.(C) No. 35974 OF 2009 and W.P.(C) No. 6421 OF 2010 -:15:- evidence. No information in that regard is available and it is impossible to adjudicate such claims in the proceedings under Article 226 of the Constitution. For all the abovementioned reasons, we see no merit in the these two writ petitions and therefore dismissed. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb