C.W.P. No.20615 of 2009 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.20615 of 2009 (O&M) Date of Decision:30.03.2010 Vikram Thakur ........Petitioner Versus Union of India through Secretary to Government of India, Ministry of Defence, South Block, New Delhi and others ....Respondents Present: Mr. Arvind Bansal, Advocate for the petitioner. Mr. K.K. Kahlon, Advocate for UOI. Mr. Ashutosh Hoshiarpuri, Advocate for respondent Nos.5 and 6. Mr. Anil Kumar Sharma, Addl. A.G. Punjab for respondent No.7. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The petitioner seeks for quashing the letter issued by the Administrative Commandant setting out certain restrictions on the user of roads within a cantonment area. The impugned restrictions were purported to be brought through communication of the Administrative Commandant dated 14.11.2009 addressed to the District Magistrate, Ferozepur and the Senior Superintendent of Police as under: C.W.P. No.20615 of 2009 (O&M) -2- “(a) Regulate the entry and exit route of the Cantonment by establishing check posts/guard posts and by closing down certain linked roads required basis. (b) Issue security passes to all civilians residing/working/visiting regularly in the Garrison Area with the help of Cantonment Board. Station Headquarters Ferozepur shall be the only agency for issuing security passes to all affected civil personnel. (c) The movement of population in and around garrison area will be regulated by security agencies if they are not in possession of the valid security pass.” 2. When an access to certain roads were sought to be curtailed by the members of the public, the writ petition has been filed at the instance of a local citizen complaining that the constitutional right of free movement was hampered by the impugned letter and the restrictions which had been cast were beyond the authority of law and were unreasonable. The learned counsel appearing for the petitioner would refer to the fact that subsequent to the security measures, which were sought to be put in place by the Army Officer, a meeting had been convened by the Committee constituted by the District Magistrate with regard to the issue of station security pass for civilians on 08.12.2009 under the chairmanship of the District Magistrate. It was resolved that the whole place shall be divided into four zones and the Committee had made the following observations:- “The Committee observed on ground that army personnels are C.W.P. No.20615 of 2009 (O&M) -3- trying to close certain roads illegally. As a matter of fact under the Cantonment Act, 2006, Board is the only competent authority to open or close public roads. Various roads which are under the management of Cantonment Board and are maintained through public fund cannot be closed by the army. The committee also observed that Dass Road which is a Cantt. Fund road has been closed by the Army authorities without consent of the Board and needs to be reopened in public interest. The committee is of the view that roads marked as Light Brown colour are roads widely used by the general public and so there should be no obstruction in smooth movement on these roads. There should be no need for any Station Security Pass while moving on these roads.” 3. In view of the definite stand taken by the Committee that the general public shall not be put to unnecessary obstructions on roads managed by the Board with public funds and that they could not be closed by the Army, the petitioner contends that the Army officials cannot place fetters beyond what was approved by the Board. Relying on a decision in Dr. Nitin G. Khot and others Vs. Station Commandant, Belgaum and others AIR 1998 Karnataka 300, the learned counsel contends that the roads in a cantonment area vest with the Board and does not belong to the Army itself and the fundamental rights of the citizen of free movement, if they should be curtailed, it should come within the four corners of the reasonable restrictions as canvassed in Article 19(6). Upholding the C.W.P. No.20615 of 2009 (O&M) -4- right of a citizen to maintain a writ petition, a Division Bench of the Karnataka High Court had held that the roads are not the property of the Army and the mere fact that the roads passed through army areas or the Cantonment Board, they do not change the nature of the roads as meant for the user of the public, and hence the authorities cannot put restrictions resulting in inconvenience to general public affecting their fundamental right of freedom of passage. 4. Learned counsel appearing for the Cantonment Board has also very serious objections to the attempt of the Army officials to place fetters in the manner which was sought through the impugned communication. Learned counsel, although sought for time for filing a detailed reply, in view of the extreme urgency which was canvassed by the learned counsel appearing for the Union, I denied to the 5th respondent the request and urged him to make his submission even without a written statement. The learned counsel appearing for the Cantonment Board submits that Section 258 of the Cantonment Act specifically provides that no road could be closed permanently. The said section reads as under: “258. 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 C.W.P. No.20615 of 2009 (O&M) -5- 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 sun set to sunrise.” His contention would, therefore, be that the Army shall regulate any movement only subject to the decision that had been taken by the Cantonment Board with reference to how such restrictions could be placed and the Army cannot assume to itself a complete control of all regulations relating to the user of the road. 5. Learned counsel appearing for the Union would rely on the powers of a President of the Cantonment Board as vesting through Section 20 that the Officer Commanding the Station shall be the President and Section 22(1) (b) to (d) while delineating duties of the President enjoin: “22. Duties of President (1) It shall be the duty of the President of every Board - (a) Unless prevented by reasonable cause, to convene and preside at all meetings of the Board and to regulate the conduct of business there at; (b) to [control, direct and supervise] the financial and executive administration of the Board; C.W.P. No.20615 of 2009 (O&M) -6- (c) to perform all the duties and exercise all the powers specifically imposed or conferred on the President by or under this Act; and (d) subject to any restrictions, limitations and conditions imposed by this Act, to exercise executive power for the purpose of carrying out the provisions of this Act, and to be directly responsible for the fulfillment of the purpose of this Act. 7. According to the learned counsel appearing for the Union, these powers of the President shall be exercised by the Officer Commanding the Station and if any fetters had been placed, it was absolutely necessary for security reasons, having regard to the fact that Ferozepur Cantonment was a sensitive and important military station and the prevailing security concerns on increased terrorist activities and unrest in the neighbouring country necessitated the Army to be more vigilant and pro-activate at all times. The Regulation as sought to be placed became absolutely essential and the power of the Army to regulate the rights in the manner canvassed in the letter dated 14.11.2009 could not be fettered. 8. It should be noticed that the fundamental right of freedom of movement is paramount and a person placing a fetter shall take upon himself the responsibility of showing the reasonableness of the restrictions placed. While the security concerns of an Army would be too obvious to be emphasised, it has to still beset its own role to how the law allows for. The issue of security does not mean trampling with individual freedom. The issue is always how to accommodate conflicting interests within the realms of law. If the fundamental issue is seen as a right of an individual to use a road, C.W.P. No.20615 of 2009 (O&M) -7- the next obvious approach shall be to see in the extent of control who controls the same and for whose benefit. If a public road is for the benefit of the public and if the road vests in the Board, any restrictions of the public movement over such road shall conform to such regulations as the Board in consultation with the Army Officers should take. In this case, subsequent to the letter dated 14.11.2009, there has been a meeting on 20.11.2009 where the Army Officers have also participated. They have passed a resolution to the request made by the Army on the following lines: “(i) Draft detailed plan to be prepared for placing check posts and put up for consideration. (ii) Action for issuing of passes by the Station Headquarters Ferozepur be initiated and verification of antecedents may be done by the respective ward members. (iii) Meeting with DIG, DC, SSP be held by Army authorities and outcome be intimated. (iv) Police authorities be requested to increase patrolloing in the Cantonment area. (v) Elected members were asked to sensitize the public regarding such security measures. 9. The resolution so passed shall, therefore, map the restrictions that the Army officials can impose. Beyond what was stated, what was discussed and how the resolutions have been drawn, the Army officials cannot place any fetter. To this date, the learned counsel appearing for the Board would state, that no draft detailed plan has been prepared and given. I have no doubt in my C.W.P. No.20615 of 2009 (O&M) -8- mind that the Army cannot decide on the user of the road by its perception of how security shall be managed by any unilateral decision. The letter dated 14.11.2009, which is impugned in the writ petition does not require to be quashed, for it was but an expression of security perception by an Army Official, and how it shall be put in place which was addressed to the Cantonment Board, on the basis of which the Board has passed a resolution outlined above. The Army shall, hereafter do what was resolved at the meeting of the Board and take appropriation action in an active collaboration with the members of the Board. The restrictions that could govern the public movement shall conform to a T on the mutually agreed formula. It shall be the joint endeavour of the Army with the Cantonment Board to carry out the resolutions, with no scope for one upmanship of one over the other. 10. In the light of the above observations, it requires no further emphasis to observe that the proposals given on 14.11.2009 shall themselves not be put in place but the Army shall conform to the Resolution and draw up a fresh plan of actions to regulate the traffic in the manner which is permissible. The writ petition is allowed on the above terms. It is clarified that if any road has been closed by virtue of the communication dated 14.11.2009 it shall be opened and any other restriction shall only be done in the manner referred to above. (K. KANNAN) JUDGE March 30, 2010 Pankaj*