# Writ-C No. -18086 of 2014 Morning Walkers Association & Ors v. Allahabad Cantonment Board

- **Citation:** (2015) 3 ILRA 1502
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-18
- **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/writ-c-no-18086-of-2014-morning-walkers-association-ors-v-allahabad-cantonment-43365
- **Pages:** 18

## Headnote

Constitution
of
India,
Art.-19
(i)(d)-
Prohibition
on
morning
and
evening
walking in Cant. Area without pass-without
intention
of
interruption
of
right
of
movement-on
public
road-necessity
of
taking
pass-held
unhealthy
decisionwhenever such situation occurs-authorities
to take decision only after discussion from
the institute like High Court.
Held: Para-50 & 51

## Text

_Characters 0–39,944 of 58,104. This is a partial read: ask again with offset=39944 for what follows._

1502
 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.
Writ-C No. -18086 of 2014
Morning Walkers Association & Ors.
 ...Petitioners
Versus
Allahabad Cantonment Board .Respondents
Counsel for the Petitioner:
Abu Bakht
Counsel for the Respondents:
Prashant Mathur, Satish Kumar Rai
Constitution
of
India,
Art.-19
(i)(d)-
Prohibition
on
morning
and
evening
walking in Cant. Area without pass-without
intention
of
interruption
of
right
of
movement-on
public
road-necessity
of
taking
pass-held
unhealthy
decisionwhenever such situation occurs-authorities
to take decision only after discussion from
the institute like High Court.
Held: Para-50 & 51
50. The aforesaid discussion is also
necessary for any action to be taken in
future as public convenience cannot be
overlooked. A person suffering from any
immediate serious ailment like a heartattack at midnight, would not obviously
be asked to wait upon to obtain a pass
for commuting on a road if he resides in
the vicinity to reach the hospital. This is
just one practical aspect of the matter
and there are many such shades which
require consideration including other
public conveniences.
51. It is for all the aforesaid reasons
that we hold that the petitioners are
right in their submission that they do not
require to be imposed with a condition of
obtaining
a
pass
from
the
military
authorities in the background and purpose
aforesaid. We also are of the opinion that
in case the Cantonment Board proceeds to
take any steps in future in the light of the
letter dated 7th January, 2015, it may
inform
to
the
public
at
large
and
particularly to institutions like the High
Court before taking up any such measures
for discussion so that the point of view of
public
convenience
may
not
be
left
unheeded in any of its dimension. The
respondents are therefore directed to act
accordingly.
Case Law discussed:
W.P. No. 3549 of 1997; AIR 1998 SC 431;
W.P. No. 4271 OF 2007; PIL No. 361 of 2012.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. This petition has been filed by a
collective group of individuals describing
themselves as the Morning Walkers
Association through Sri Promod Kumar
Jain, a Senior Counsel of the High Court
accompanied by a couple of Senior
Counsels, Sri W.H. Khan and Sri V.M.
Zaidi and with the support of Sri G.S.
Hajela another counsel of this Court. Sri
Ram Chandra Gupta is the petitioner no.
6. They are all residents of adjoining
localities
in
the
vicinity
of
New
Cantonment at Allahabad. They submit
that they are regular morning and evening
walkers on the roads that fall inside the
New Cantonment area including the roads
that
are
accessible
to
the
public,
particularly Cariappa Road, Ponappa
Road and Lawrence Road.
2. Their morning walks were
interrupted by checkings carried out by
armed soldiers of the Indian Army at the
entry point and crossings of such roads
with an insistence to obtain a requisite
pass from the military authorities. This
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1503
sparked off the controversy in February,
2014.
3. On enquiry, the petitioners allege
that for the purpose of commuting on
such roads an application for issuance of a
temporary pass to a civilian has to be
moved and pass obtained, the format
whereof is Annexure - 1 to the writ
petition. The petitioners were orally
informed that an amount of Rs.150/- has
to be paid as a fee for the said pass.
4. They contend that the morning
and evening walkers in the locality of the
Cantonment area are all respectable citizens
of the city including Hon'ble Judges of the
High Court,
Advocates, Academicians,
Businessmen and practically people from
all walks of life that comprise of male and
female population both. The roads that are
being used for the said purpose have been
open to the public at large, particularly
Cariappa Road, Ponappa Road, Ashoka
Road, Hastings Road, Auckland Road and
other connecting roads that crisscross the
roads in the Cantt Area. The said roads are
also linked with the other areas and merely
because these roads are linked with roads
within the Cantt Area does not change
their nature as public utility roads so as to
impose such commuting restrictions that
are now sought to be imposed by the
respondents by insisting commutation on
issuance of passes. It is this routine daily
pilgrimage that has come under a military
scanner that forms the factual matrix
giving rise to the issues involved in the
present petition.
5. Learned Senior Counsel for the
petitioners Sri Ravi Kiran Jain is right
when he submits that a walk for a human
being is as essential as a swim for a fish
and a flight for a bird. It is natural, as a
human being is physically designed, by
nature, to negotiate distances. It is his
elixir of life. Walking, as an exercise and
as a means of adventure, is natural to man
and the present petitioners have come
forward to protect such natural behaviour,
asserting it as a right, calling upon the
court to instruct the respondents not to
interrupt their morning walks on streets
open to the public within the cantonment
limits of the New Cantt. Allahabad by
policing, as it offends their lawful right to
traverse and commute freely on the
grounds of violation of the rights of
freedom
in
its
various
dimensions
enshrined under Part
- III of the
Constitution of India.
6. Sri Jain, learned Senior Counsel
then invited the attention of the Court to
Article 19(1)(d) of the Constitution of
India and also cited the division bench
judgment of the Karnataka High Court in
the case of Nitin G. Khot Vs. Station
Commandant, Belgaum, Writ Petition No.
3549 of 1997 decided on 23rd January,
1998. A copy of the said judgment has
been placed before us to contend that this
issue has been decided and the ratio of the
said decision is clearly attracted on the
facts of the present case to construe that
the said restrictions which are sought to
be imposed are unreasonable as they tend
to close down such roads of the
Cantonment for commutation including
morning and evening walks.
7. He has further invited the
attention of the Court to the order dated
24th August, 1998 in Special Leave to
Appeal No. 8218 of 1998 whereby the
Apex Court dismissed the Special Leave
Petition filed by the military authorities
challenging the aforesaid decision of the
Karnataka High Court.
1504
 INDIAN LAW REPORTS ALLAHABAD SERIES
8.

To
further
buttress
his
submissions Sri Jain has fundamentally
questioned not only the said restrictions
being imposed as without authority but
also as unconstitutional and for that he
has
referred
to
the
constitutional
provisions leading to the judgment of the
Apex Court in the case of Naga People's
Movement of Human Rights Vs. Union of
India, AIR 1998 SC 431.
9. He therefore submits that neither
the roads can be shutout for such
commutation and even otherwise the
same being a street as defined under
Section 2(zza) of the Cantonment Act
2006, any attempt for such closure is
invalid through indirect methods by the
respondent
- military authorities. He
submits that such prohibition cannot be
imposed
except
by
the
procedure
prescribed under the 2006 Cantonment
Act and which powers cannot be assumed
by the military authorities exclusively to
themselves by attempting policing and
prohibiting
commutation
to
the
disadvantage of the public at large for no
valid purpose. The contention therefore is
that such unreasonable fetters which are
not backed up by any law for the time
being in force, by imposition of military
authority, should not be permitted in the
manner as sought to be imposed by the
respondents.
10. The respondents filed a short
counter affidavit asserting their authority
to do so and also have tried to justify their
action that this was being done in order to
secure military interest as well as it would
also protect the citizens at large so that
security is not compromised in any
manner. This was necessary to facilitate
movements
with
the
minimum
of
inconvenience.
They
have
taken
a
particular plea with regard to three roads,
namely Cariappa Road, Ponappa Road
and Rajiv Gandhi Road (Lawrence Road)
that these roads are exclusively within the
control of the military authorities as such
land is classified as A-1 Defence Land
under
the
Cantonment
Land
Administration Rules 1937.
11. They have also in their affidavit
indicated
the
duties
of
a
Station
Commander that includes taking action in
the case of any disturbance in consultation
with the local authorities as well as a host
of other military activities as indicated
therein. The affidavit also refers to an
antiquated
rule
for
the
acquisition,
custody, relinquishment etc. of military
lands in India (ACR Rules 1944) to urge
that roads which are under the immediate
control of the Army include "Imperial
Military Roads" and for that the said rules
still hold the field, on the strength
whereof, military authorities are justified
in imposing such restrictions.
12. The respondents have also relied
on the judgment of the Delhi High Court
dated 28th May, 2003 in Traders Welfare
Association Vs. Union of India and others
to contend that wherever there is a
security concern, the areas exclusively
used for armed forces can be cordoned off
from
the
general
public.
Another
judgment that has been relied on is that in
the case of Dr. G.S. Ahluwalia Vs. Union
of India and others by the Madhya
Pradesh High Court in Writ Petition No.
4271 of 2007 where in the name of
security, the installation of an iron gate
subject to checking for security has been
upheld. Another judgment of the Andhra
Pradesh High Court in the case of Father
(Parish Priest) Holy Family Church and
others Vs. Government of India and
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1505
others in PIL No. 361 of 2012 decided on
26.11.2012 has been relied upon to
contend that the category of Class - A(1)
Defence Land which has a military road,
is not within the exclusive right of the
public to commute moreso when the
public already has alternative connections
to the areas through which commutation
is sought.
13. The hearing of this case was
postponed on two occasions on account of
certain other matters that were being
heard including a PIL No. 4519 of 2011
that came to be decided on 14th August,
2014 by a division bench of this court in
relation to the restrictions imposed by
prohibiting commutation on another road
known as Newa Road within the same
Cantonment at Allahabad. The closure of
the said road to the public was found to be
justified on the ground that the road was
being exclusively used for an approach to
a sensitive military installation namely an
arsenal and target firing training area, and
therefore when an alternative road is
available
to
the
affected
residents
connecting the said road via another road,
then the closure would be justified. It was
further indicated by the respondents
therein that as a temporary measure a road
passing through Class - A(1) Land would
be made available till the construction of
the military installations are completed.
This judgment has also been relied on by
the respondent in their support.
14. Apart from this, the learned
ASGI, Sri Ashok Mehta, Sri Gyan
Prakash and Sri Satish Rai for the
respondents have brought to our notice
the decision of the Ministry of Defence
communicated through Letter dated 27th
January, 2015 to urge that in view of the
provisions of Section 258 a street as
defined under Section 2(zza) can be
permanently
closed
only
by
the
Cantonment Board for security reasons
alone upon following the procedure as
indicated therein and therefore in order to
avoid any inconvenience such steps
should be taken only after following the
said procedure and obtaining statutory
approval.
15.
Thus the contention of the
respondents is as indicated in Paragraph 26
of their counter affidavit that no road as
referred to in the writ petition has been
shutoff completely and instead only security
measures are being undertaken. In Paragraph
32, they have come up with a case that no fee
shall be charged for entry passes and no
police verification shall be insisted upon as
provided for in the proforma.
16. Sri Rai learned counsel for the
Central Government has passed on a copy
of the letter of the Defence Ministry dated
6th October, 2008 indicating the category
of passes that are to be issued for defence
installations.
17. It is in the aforesaid background
that we had adjourned the delivery of
judgment and then again listed the case
for further hearing and upon conclusion of
the arguments that the judgment was
again reserved by us.
18. Before we deal with the statutory
provisions under the Cantonment Act
2006
and
the
Cantonment
Land
Administration Rules 1937, it would be
appropriate
to
refer
to
a
brief
constitutional history and also the objects
and reasons that were discussed and are
mentioned when the Cantonment Act
2006 was revisited by the Parliament and
amended through Act No. 41 of 2006.
1506
 INDIAN LAW REPORTS ALLAHABAD SERIES
19. After gaining independence and
while framing the Constitution the longest
debate that occupied the constituent
assembly was the Chapter on fundamental
rights enshrined under Part - III of the
Constitution including Article 19(1)(d) of
the Constitution with which we are
presently concerned.
20. Matters of public liberty and
reasonable restrictions, the community
interest of individual and State interests
were debated at length but for the purpose
of their interpretation and to spell out the
importance of such rights one has to
necessarily
refer
to
the
period
of
emergency that was imposed in an around
1975
with
the
advent
of
certain
constitutional amendments that came to
be challenged in several cases before the
Apex Court that defined and reiterated
such fundamental rights being protected
against unreasonable laws that attempted
to hit at the roots of the basic principles of
democracy. Matters went so far so as to
take away the power of the High Court to
issue prerogative writs while considering
validity of laws by the Centre. The
infamous 46 Amendment Act 1976
introduce
Section
39
whereby
the
Constitution was amended adding Article
226-A which read as follows:-
"226-A. Constitutional validity of
Central laws not to be considered in
proceedings
under
Article
226.
-
Notwithstanding anything in Article 226,
the High Court shall not consider the
constitutional validity of any Central law
in any proceedings under that article."
21. The parliament swiftly, after the
political
scenario
changed
by
a
revolutionary
open
public
franchise
mandate, demolished such unworthy laws
and repealed the same by omitting the
above through Section 8(2) of the 43rd
Amendment Act 1977 that reads as
follows:
[Section 8(2) provides. "(2) Any
proceedings pending before a High Court
under Article 226 of the Constitution
immediately before the commencement of
this Act may be dealt with by the High
Court as if the said Article 226-A had
been omitted with effect on and from the
1st day of February, 1977."]
22. The question involved herein is
the protection of the fundamental rights
guaranteed under Article 14, 19(1)(d) read
with Article 19(5) and Article 21 of the
Constitution of India. The same are
extracted hereinunder for reference:-
"Article 14. Equality before law: The
State shall not deny to any person
equality before the law or the equal
protection of the laws within the territory
of India.
Article 19. Protection of certain
rights regarding freedom of speech, etc:
(1) All citizens shall have the right-
(d). to move freely throughout the
territory of India.
Article 19(5). Nothing in [subclauses (d) and (e)] of the said clause
shall affect the operation of any existing
law in so far as it imposes, or prevent the
State from making any law imposing,
reasonable restrictions on the exercise of
any of the rights conferred by the said
sub-clauses either in the interests of the
general public or for the protection of the
interests of any Scheduled Tribe.
Article 21. Protection of life and
personal liberty: No person shall be
deprived of his life or personal liberty
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1507
except according to procedure established
by law."
23. The constitution very carefully
engrafts the legislative territories between
the Parliament and the State Legislatures
captioned under Part XI, Chapter
-I
(Distribution of Legislature, powers -
Article 245 to 255). Article 246 of the
Constitution
prescribes
the
matters
enumerated in List I in the 7th Schedule
to be within the exclusive domain of
Parliament.
Similarly
the
State
Legislature has the exclusive powers
under List II of the same schedule to
legislate laws subject to List I and List III
thereof. The joint obligation, namely what
can be described as the common areas of
distribution of legislative powers between
the Parliament and the State legislatures,
is provided for under List III, the
concurrent list. The residuary powers of
parliament are under Article 248 and to
make laws on the request of the States
under Article 249. The emergency powers
of Parliament to legislate on State matters
is contained in Article 250. The other
articles of Chapter I of Part XI also carve
out definitions of specific areas of
Legislation
and
the
priority
of
a
legislation to prevail in matters of
inconsistency
of
laws.
Thus
the
competence of the Union Parliament and
State legislatures is defined as above.
24. The State legislatures have been,
subject to the laws falling within the
competence of the Parliament, have been
given exclusive authority to legislate laws
on the subject of Public Order (List-II
Entry-1) and Police - including railway
and
village
police,
subject
to
the
provisions of Entry 2-A of List - I. Thus
Public order and policing is clearly a State
subject matter. A cantonment area as
defined under Section 3 of Cantonments
Act 2006, is also subject to such laws
with some exceptions vis-a-vis the
members and establishment of exclusive
armed forces. However the Parliament
can make laws extending the powers and
jurisdiction of police forces to any other
State subject to the limitations contained in
Entry 80 of List - I. The overriding power of
the Parliament in respect of policing under
Entry 2 of List II (State list, is the
deployment of armed forces of the Union in
aid of the civil power of the State as per
Entry 2-A of List - I (Union List). This
exception and its fall outs, as well as the
extent of the competence of the Union
Government to make such laws and their
enforceability have been dealt with in detail
in the judgment of the Apex Court in the
case of Naga People's Movement of Human
Rights Vs. Union of India, AIR 1998 SC
431 that has been relied on by the
petitioners. Policing and Public Order are
thus within the exclusive civil powers of the
State but the Centre to aid such civil power
has been authorized under the Constitution
to frame laws as explained above.
25. A little bit of Constitutional history
post independence may be referred to in this
context. After the repeal of Article 259 way
back in 1956 through the 7th Amendment
Act, the 42nd Amendment of 1976 within its
sweep also granted the Union Government
powers to deploy armed forces to deal with
any grave situation of law and order in any
State
through
Article
257-A
quoted
hereinunder:-
"[Article 257-A. Assistance to States
by deployment of armed forces or other
forces of the Union]"
26. This provision was again by a
prudent and wide Act of Parliament
1508
 INDIAN LAW REPORTS ALLAHABAD SERIES
namely the 44th Amendment Act 1978,
repealed. The parliament therefore twice
in the past had intervened and prevented
any laws to continue giving formal
powers to the Armed Forces from
entering into the realm of law and order,
that touches also public order and
policing. This is no adjudication on any
such issue but legislative powers remain
limited within the area of competence of
the Union Parliament as noted above.
27. The power of the parliament to
frame laws about the constitution and
regulation of Cantonments is provided for
under Entry 3 of List -I as follows:-
List - I Entry - 3. Delimitation of
cantonment areas, local self-government
in such areas, the constitution and power
within
such
areas
of
cantonment
authorities and the regulation of house
accommodation (including the control of
rents) in such areas.
28. Cantonments were earlier
governed by the Cantonments Act 1924
and its allied laws. The 1924 Act came to
be repealed under Section 360 of the
Cantonments Act 2006 published in the
gazette on 14.9.2006 that came into force
w.e.f. 18.12.2006 as per Section 1(3)
thereof. The objects and reasons that were
spelt out at the time of presentation of the
Bill introducing the New Act are as
follows:-
"THE CANTONMENTS ACT,
2006
(41 OF 2006)
[13th September, 2006]
An act to consolidate and amend the
law relating to the administration of
cantonments with a view to impart greater
democratization, improvement of their
financial base to make provisions for
development activities and for matters
connected therewith or incidental thereto.
Be it enacted by Parliament in the
Fifty-seventh Year of the Republic of
India as follows:-
Statement of Objects and Reasons. -
The Cantonments Act, 1924 (2 of 1924)
makes
provisions
relating
to
the
administration
of
cantonments.
As
cantonments are Central territories under
the
Constitution,
the
civil
bodies
functioning in these areas are not covered
under State municipal laws.
2. In view of the present day,
aspirations
and needs of the people
residing in cantonment areas and in order
to
bring
in
modern
municipal
management
procedures/techniques
in
such areas, it is proposed to enact a new
legislation by replacing the Cantonments
Act, 1924 to provide for - (i) greater
democratization; (ii) reservation of seats
in Cantonment Boards for women and the
Scheduled Castes/Scheduled Tribes; (iii)
better
financial
management;(iv)
extension
of
centrally
sponsored
development schemes to such areas; (v)
management of defence lands and their
audit etc.
3. The new legislation has been
modified with a view to re-enact the
existing Act in the context of SeventyFourth Constitutional Amendment and to
provide for better urban management in
cantonment as recommended by the
Standing Committee of Parliament on
Defence and the Action Taken Note of the
Government on their recommendations.
Broadly, the
proposed
modifications
could be caegorised as under:-
(i) Greater Democratisation.- The
Bill envisages enhanced representation for
elected members to make proper balance
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1509
between the elected and nominated one.
Reservation of seats in the Cantonment
Boards for women and the Scheduled
Castes/Scheduled Tribes would also fall
in this category. In this proposed Bill,
parity has been brought between the
official and elected members of the Board
and with this, the number of elected
members would increase. The enhanced
representation for elected members will
cater for increased civil population in the
cantonment areas.
(ii) Land Management;- Over the
years, the defence land ownership has
increased to 17.31 lakh acres out of which
about 2 lakh acres of such lands are
situated within 62 notified cantonment
being managed under the existing Act.
There is no statute to cover the
management of about 15 lakh acres of
defence
lands
lying
outside
the
cantonments. As on date, these defence
lands
are
regulated
by
executive
instructions (not covered under any
statute),
issued
by
the
Central
Government from time-to-time through
Acquisition, Custody, Relinquishment,
etc. of Military Lands in India (ACR)
Rules, 1944, which are non-statutory in
nature.
The Management of Cantonment
Board properties and the defence lands
outside the Cantonments is different from
each other in a sense that the former is
covered under the existing Act and the
Cantonment Property Rules, 1925 made
thereafter, whereas, there is no such
legislation or rules for the latter. The
Standing Committee of Parliament (12th
Lok Sabha) recommended that provisions
may be made in the Cantonments Act
itself regarding management of defence
lands, their records, consolidation of
earlier policies and land audit.
Statutory
provisions
have
accordingly made and a new Chapter on
management of defence lands has been
added in the Bill. The provisions
contained in this chapter will, inter alia,
enable the Central Government to notify
the defence lands, consolidate land
management policies and records in
regard to defence lands, carry out land
audits
to
detect
abuse
if
any,
nonutilisation and sub-optimal utilization
of lands.
[*Received
the
assent
of
the
President on 13.9.2006 and published in
the Gazette of India, Ext.,Pt. II, S. 1,
dated 14.9.2006.]
The
Standing
Committee
of
Parliament has also recommended making
legal provisions to tackle encroachments
on defence lands situated all over the
country. Accordingly, the problem of
encroachment is not proposed to be
tackled through the provisions contained
in Clauses 239, 248, 249, 253 and 257 of
the proposed Bill. This would be in
addition to the powers available to the
Government under the Public Premises
(Eviction of Unauthorised Occupants)
Act, 1971.
(iii)
Development
impetus;-
In
addition, provisions have been made
which would given necessary impetus to
development activities, To keep pace with
recent developments, provisions have also
been made for developmental and welfare
activities like (town planning, old age
homes, houses for disabled and working
women hostels, rain water harvesting,
nonconventional
energy
and
other
miscellaneous developmental activities
which are important to sustain the
environment and taking steps for social
development.
(iv) Resource Generation- Provisions
have been incorporated in the new Bill to
1510
 INDIAN LAW REPORTS ALLAHABAD SERIES
streamline
financial
administration,
improve finance base and change the tax
mechanism keeping in view the needs of
modern
municipal
administration.
Provisions have also been made for a
Cantonment Development Fund in which,
any sum received from Government or an
individual or association (by way of gift
or deposit) or from centrally sponsored
scheme, may be credited.
The
Standing
Committee
of
Parliament (12th Lok Sabha) had also
made a recommendation for extension of
centrally sponsored development schemes
in cantonments for uniform development
of States. Provisions in clauses 10 and
108 of the Bill have therefore been made
making
every
Board
a
''deemed
municipality' for the purpose of Article
243-O(e) of the Constitution. This would
enable the Cantonment Boards to avail
benefits and advantages of centrally
sponsored
schemes
for
social
and
economic development as are presently
available to other municipalities in
various States.
Under
Article
285
of
the
Constitution, the properties of Central
Government are exempted from all taxes
imposed by local authorities in the States.
Representations were received that for the
services rendered by the local bodies and
the financial implications involved, some
payment in the form of service charges
may be made to them. Consequently, the
Central
Government
issued
certain
executive orders making provision for
payment of service charges to local bodies
since 1954.
There
is
no
specific
statutory
provisions to give legal backing to the
said
decision/orders
made
by
the
Government in this regard from time-totime. It is, therefore, proposed to make a
provision in the Bill for payments to be
made to the Cantonment Boards for
service charge by the Central and the
State Governments, after ascertaining the
same.
4. The Bill seeks to achieve the
above objectives."
29. The aforesaid recital of objects
and reasons in the bill which received the
assent of the President in Clause 3(ii) as
highlighted above does indicate the 1944
Rules which have been relied upon by the
respondents are non-statutory in nature.
30. Having given this background
the real grievance of the petitioners is
about dignified morning or evening walks
being undertaken by them in the New
Cantt area in a respectable way and not
under any shadow of toting guns.
31. Walking with dignity is a
respectful way of enjoying this freedom.
Brisk walking is a suggested healthy
exercise. Thomas Jefferson, the famous
American President, responsible for the
drafting of the U.S. Constitution with the
ideals of freedom enshrined in his
'writings' said, "walking is the best
possible exercise. Habituate yourself to
walk very far." Accompanied morning
and evening walks are at times a close
knit family routine outing. It also serves
as a forum for dialogues and discussions
with exchange of views in a friend's
company. Many problems that are a cause
of deep concern or mental worry get
resolved during morning and evening
walks and one gets also acquainted with
people and ideas. Maitland describes this
as the motto of the philosophic tramp
"Solvitur Ambulando" (it is solved by
walking).
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1511
32. To look at a citizen of this
country on a morning or evening stroll on
a street with unwarranted suspicion is
tinkering with his constitutional liberties
and therefore the rule of law needs to be
observed when it comes to any reasonable
restrictions being imposed to curtail such
liberty in the name of State interest.
Freedom
guaranteed
in
the
postindependence republican constitutional era
is aimed at removing all unreasonable
State - imposed sovereign fetters that
existed in a colonial regime to promote
alien rule interests. The people of India
have given unto themselves a constitution
with fundamental rights that are inalienable
subject only to reasonable restrictions to
the law made by the legislature. They are
therefore to be governed now, not by the
command of a monarch, but by the rule of
law. There is a temptation to understand
such freedoms in one's own individual
interest, but this may reflect a general
collective interest when it comes to a cause
relating to normal public life. This then
becomes a debate of public interest as
against
exclusive
State
interest.
A
restriction applied in an unreasonable way
gives rise to protests, as in the present case,
to a call before the courts.
33. To begin with, the first issue is
with regard to the status of such roads
which is being claimed by the respondents
to be exclusively 'Imperial military roads'
as per the 1944 Rules relied upon by the
respondents. We may observe that there is
no scope for any capitation of any road
being "Imperial" in nature after India
became independent and adopted a
Republican Constitution. It is for this
reason that while introducing the bill for
the new Act in Parliament the 1944 Rules
were not acknowledged to be having a
statutory force in the objects and reasons.
Nonetheless merely because a road which
has been constructed over a land that
came to be classified as Class A(1) land
would not take away its status of a street
as defined under Section 2(zza) of the
2006 Act. The streets which have been
mentioned in the writ petition are
connected with the pure civilian areas
directly adjacent to such roads, namely
the High Court, Bungalow of Judges and
also civilian occupants of bungalows
within
the
cantonment
including
residential areas. Thus these streets and
roads are an access to civilians as well
who reside within the cantonment. This is
necessary to emphasize as the respondents
themselves have not disputed this position
but they contend that since there are
military establishments as well on these
roads, they intend to impose restrictions.
34. We have no doubt that any
military installation which is exclusive for
military purpose, for example the SubArea Headquarters or the Residences of
military officials, are not open to the
public at large for free entry, but streets
which are being used by the public as well
including civilians within the cantonment
and outside, are not even proposed to be
completely shut down by the respondents
themselves. The petitioners therefore for a
morning and evening walk on such streets
are not required to seek entries through a
pass or on such roads which are also of
public utility, for which there is no
authorization either under the 2006 Act or
the
Rules
framed
thereunder.
The
respondents have been unable to show
any such law or rule requiring morning
and evening walkers to obtain passes.
What the respondents have come forward
appears to be a letter issued by the
Ministry of Defence dated 6th October,
2008, that is extracted hereinunder:-
1512
 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 23(26)/2008/D (GS-III)
GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
^^^^^
New Delhi - 110 011, dated 6th
October, 2008
To
The Chief of Army Staff
The Chief of Naval Staff
The Chief of Air Staff
Subject: Passes for the Defence
Installations.
Sir,
In
supercession
of
the
orders
contained in this Ministry's letter No.PC19201/2/GSI(b)(v)/2719/I/D(GS.III) dated
24-10-1977, I am directed to say that the
President is pleased to approve the
adoption of the following procedure in
regard to the provisions of identity
documents for civilians associated with
Defence areas.
2. Following identity document will
be issued to civilian personnel in the form
of IAFZ 3049, 3049A, 3050 and 3052:-
(a) IAFZ 3049 - This will be issued
to all Gazetted officers working in a unit
located within the perimeter of Defence
establishment.
(b) IAFZ 3049A - This will be issued
to all non-gazetted officers and other
employees of the Government who are
working in a unit located within the
perimeter of Defence establishment.
(c) IAFZ - 3050 - This is a temporary
pass that may be issued to Government
employees
who
are
entitled
for
3049/3049A pending delay.
(d) IAFZ - 3052 - Casual Visitors
will be issued with a temporary pass on
the form IAFZ - 3052 valid for the day of
issue only.
(e) For all other personnel such as
dependant family members of defence
personnel/defence
civilians,
servants,
contractors, vendors, shopkeepers, labours
etc. suitable passes, for specified periods
of validity as convenient, may be
designed
with
colour
codes
for
classification, and implemented by the
authorities
delegated
by
Military
Commanders of the Area or Station
irrespective of services.
3. Authority for Issue of Passes.
Various passes mentioned at para 2 above
shall be issued by the designated Security
Officer/Authority and shall be valid for
the concerned Station/Area only, Area
Commanders shall, nominate Security
Officers
within
their
area
of
responsibility. However, Commanding
Officers of respective units may issue
special passes in respect of areas where
restricted entry of personnel is required
owing to the sensitiveness, with the
approval of Area Commander.
4. The documents mentioned at para
2 above are identity documents and do not
entitle
the
holder
to
enter
any
establishment.
5. On transfer from one station to
another, the identity document will be
surrendered to the issuing authority at
new station. The issuing authority at new
station will, in turn, issue a new pass and
destroy the previous one under intimation
to the old station of the individual for
completion of their records.
6. Cost of Photographs. The cost of
photographs required for identity passes
in respect of the employees, their families
and dependents will be borne by the
individuals concerned.
7. Replacement. Permanent passes
will be replaced in the following cases:-
(a) when worn out by normal wear
and tear.
3 All.
 Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board
1513
(b) when more than two alterations
become necessary.
(c) when there is a change in the
facial appearance of the holder.
(d) when there is a change in the
name of the holder.
(e) when lost.
(f) On expiry of validity due to
transfer from one station to another.
8. A permanent pass will be
considered as worn out by normal wear
and tear on completion of five years of its
issue. A duplication fee of Rs. 20/- will be
charged for any replacement that becomes
necessary
within this period due to
damage of pass under circumstances
beyond one's control.
9. Labourers will be issued tokens
and their records will be maintained by
concerned unit and contractor.
10. Loss of Passes. The loss of any
pass should be immediately reported to
the officer commanding/security officer
of the unit/establishment, explaining the
circumstances under which it occurred to
enable him to issue a new pass. Report of
the loss should be supported with a report
lodged
with
the
Police
Station.
Duplication fees of 20/- will be charged in
addition to the cost of photographs.
Additionally, a fine of Rs. 100/-, 150/-,
200/- will be charged towards First,
Second and Third loss respectively apart
from the normal disciplinary action.
11. Duplication fees towards loss of
tokens by labours will be based on actual
cost of manufacture of Rs. 20/- whichever
is higher. Fine towards loss of each
pass/token
by
Contractors,
vendors,
shopkeepers
and
labours
may
be
implemented by pass issuing authority as
considered suitable however the same
should not exceed Rs. 500/-.
12. Expenditures incurred towards
printing of passes and manufacture of
tokens may be met from Public funds.
Detailed
orders
including
fines,
duplication fees etc. are to be issued by
respective authorities issuing passes.
13. Further amplifying orders may be
issued
by
service
Headquarters,
as
required.
14. This letter with the concurrence
of the Ministry of Defence/Finance/GS
vide Dy. No. 2194/GS/2008 dated 16th
September, 2008.
Yours
faithfully,
(JAI RAJ)
Under
Secretary to the Government of India
Copy to:
The Controller General of Defence
Accounts*
Director of Audit Defence Service
All
Controllers
of
Defence
Accounts*
All the Senior Dy. Directors of
Audit, D.S.
CGS/MI Directorate/GS I (b)(ii)
Security
Officer,
Ministry
of
Defence
Ministry of Defence (Coord)
Section D(Est-I), D(Civ), D(Coord),
D(FY) to take action regarding ordinance
Factories.
CG (Admin)
*(Copies signed in Ink - to be sent to
all the Controllers of Defence Accounts)
Copy also to:
D(Air-II); D(Navy); Air Hqrs,(Dte of
Int); Navy (Int.) and DGMI/MI-11"
35. The aforesaid letter has been
handed down by the learned counsel for
the respondents which indicates that
passes are required for the purpose
indicated therein vis-a-vis the defence
installations. The said letter does not
indicate that a person who is either a
1514
 INDIAN LAW REPORTS ALLAHABAD SERIES
civilian resident of the cantonment or is a
morning or evening walker like the
petitioners is also required to get a pass
for such commutation over a street that is
constructed over Class A(1) land and is
undisputedly a road also open to use for
civilians. The said letter dated 6th
October,
2008
therefore
cannot
be
imposed upon the petitioners as they are
not demanding a pass for entering into a
defence installation. The said letter clearly
indicates that whenever a civilian wants to
enter into a defence installation, he may
be required to obtain a pass in a manner
prescribed therein but the present is not a
case that in any way can be said to be
governed by the said letter. Thus the
insistence of obtaining a pass by the
petitioners for going on a morning or
evening walk does not appeal to reason
and is an unreasonable imposition which
is not supported by any provision of law.
36. The next comes the issue of the
status of the road on which insistence is
being made by the respondents relying on
the decisions that have been cited on their
behalf to contend that if the road is
exclusively over Class A-1 land, then
such restrictions can be imposed.