Bombay High Court
Placid Developments Pvt. Ltd. And Ors vs Union Of India , Ministry Of Railways And ... on 17 April, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
2023:BHC-AS:11557-DB 26-ASWPST-3357-2023.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 3357 OF 2023
Placid Developments Pvt Ltd & Ors ...Petitioners
Versus
Union of India, Ministry of Railways & Ors ...Respondents
Mr Prasad Shenoy, with Saket Mone & Devansh Shah, i/b Vidhii
Partners, for the Petitioners.
Mr Anil C Singh, ASG,with Savita Ganoo, Smita Thakur, Danshita
& Ananya, for Respondents Nos. 1 & 5-UoI.
Mrs AA Purav, AGP, for the Respondent-State.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 17th April 2023
PC:-
1. Over the last several hearings, we have heard the Petitioners on their complaint that their property near Karjat has been rendered landlocked because of certain works by the Railways and specifically ASHWINI by the Mumbai Railway Vikas Corporation Ltd ("MRVC"). HULGOJI GAJAKOSH Digitally signed by ASHWINI HULGOJI
2. The challenge in the Petition is to a Notification dated 27th GAJAKOSH Date: 2023.04.18 10:42:51 +0530 September 2021 issued by the 1st Respondent, the Union of India through the Ministry of Railways under Section 20-E of the Railways Act 1989. A copy of that Notification is at Exhibit "X2" at Page 1 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC page 167 of the Petition memo. The Notification is of an intention to acquire land specified in the schedule. Then there is the challenge to two notices dated 30th September 2022 issued by the Deputy Collector, Land Acquisition, Raigad, Alibaug at Exhibits "U" and "V" at pages 153 and 154. These also deal with acquisition proceedings. Then there is a prayer for a mandamus directing the Collector to consider the Petitioners' proposal as set out in ground (G).
3. It is his last prayer that is of some significance because it begins by invoking Section 16(1) of the Railways Act, 1989.
4. Essentially, the complaint of the Petitioners is that for a second or parallel railway line running roughly north-south, the ensuing acquisition of land blocked off the only access that the Petitioners had on the eastern side of the railway lines. There, the Petitioners have a large plot of land or several plots of land on which they conduct cargo handling operations. These operations require the movement of large trucks or heavy vehicles with large loads. Roads have to be of a certain width. There are specific requirements for the design of roads, culverts and bridges.
5. Among the various proposals mentioned in Court is that the Railway should be compelled by a mandamus to acquire lands at the Petitioners' cost.
6. The arguments before us seem to entirely overlook the scheme of Sections 16 and 17 of the Railways Act. We believe Mr Page 2 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC Singh, learned ASG, is correct in his interpretation of these Sections.
7. These Sections fall under Chapter IV of the Railways Act which deals with the construction and maintenance of works. The word "works" is not separately defined in the Act. The meaning may be derived inter alia from Section 11 of the Act. What is important for our purposes is, however, the manner in which Section 16 and Section 17 proceed and in particular Section 16(1)(a). The two Sections are set out below:
"16. Accommodation works.--
(1) A railway administration shall make and maintain the following works for the accommodation of the owners and occupiers of lands adjoining the railway, namely:--
(a) such crossings, bridges, culverts and passages over, under or by the sides of, or leading to or from, the railway as may, in the opinion of the State Government, be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway is made; and
(b) all necessary bridges, tunnels, culverts, drains, water sources or other passages, over, under or by the sides of the railway, of such dimensions as will, in the opinion of the State Government, be sufficient at all times to covey water as freely from or to the lands lying near or affected by the railway as it was before the making of the railway or as nearly as possible.Page 3 of 9
17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC (2) Subject to the other provisions of this Act, the works specified in sub-section (1) shall be made at the cost of the railway administration during or immediately after the laying out or formation of the railway over the lands traversed and in such a manner as to cause as little damage or inconvenience as possible to persons interested in the lands or affected by the works:
Provided that--
(a) a railway administration shall not be required to make any accommodation works in such a manner as would prevent or obstruct the working or using of the railways, or to make any accommodation works with respect to which the owners or occupiers of the lands have been paid compensation in consideration of their not requiring the said works to be made;
(b) save as hereinafter, in this Chapter, provided, no railway administration shall be liable to execute any further or additional accommodation works for the use of the owners or occupiers of the lands after the expiration of ten years from the date on which the railway passing through the lands was first opened for public traffic
(c) where a railway administration has provided suitable accommodation work for the crossing of a road or stream and the road or stream is afterwards diverted by the act or neglect of the person having the control thereof, the railway administration shall not be compelled to provide any other accommodation work for the crossing of such road or stream.
(3) The State Government may specify a date for the commencement of any work to be executed under sub-
section (1) and, if within three months next after that date, the railway administration fails to commence the work or Page 4 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC having commenced it, fails to proceed diligently to execute it, the Central Government shall, on such failure being brought to its notice by the State Government, issue such directions to the railway administration as it thinks fit. Explanation.-- For the purposes of this section, the expression "lands" shall include public roads.
17. Power of owner, occupier, State Government or local authority to cause additional accommodation works to be made.--
(1) If an owner or occupier of any land affected by a railway considers the works made under section 16 to be insufficient for the use of the land, or if the State Government or a local authority desires to construct a public road or other work across, under or over a railway, such owner or occupier, or, as the case may be, the State Government or the local authority, may, at any time, require the railway administration to make at the expense of the owner or occupier or of the State Government or the local authority, as the case may be, such further accommodation work as are considered necessary and are agreed to by the railway administration. (2) The accommodation works made under sub-section (1) shall be maintained at the cost of the owner or occupier of the land, the State Government or the local authority, at whose request the works were made.
(3) In the case of any difference of opinion between the railway administration and the owner or occupier, the State Government or the local authority, as the case may be, in relation to--
(i) the necessity of such further accommodation works; or Page 5 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC
(ii) the expenses to be incurred on the construction of such further accommodation works; or
(iii) the quantum of expenses on the maintenance of such further accommodation works, it shall be referred to the Central Government whose decision thereon shall be final."
(Emphasis added)
8. Section 16 clearly contemplates that owners and occupiers of lands adjoining the railway may have certain requirements for the better or proper use and enjoyment of their lands. They may need bridges, culverts, passages and access ways. The Railways are bound to provide these but there must be the opinion of the State Government for the purpose of making good what are called interruptions caused by the railways "to the use of lands" through which the railway is made. This is precisely where the Petitioners' case falls. The additional railway line and the acquisition that goes with it is said to have affected the Petitioners' access. Ground (G) of the Petition, part of the prayer for a mandamus references Section
16.
9. What is missing however is an application to the State Government under Section 16(1)(a) or any order made on any such application.
10. Instead, the Petitioners jump straight away to Section 17. But that Section operates only after Section 16 because it contemplates a situation where an owner or occupier of land which is affected by a Page 6 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC Railway considers the works made under Section 16 to be insufficient.
11. First, there must, therefore, be works under Section 16. And for those works to be carried out, there must be the opinion of the State Government. Mr Singh is correct in saying that there is no possibility of leapfrogging this entire process and going straight to Section 17. It is the opinion of the State Government that is determinative. The Petitioners are not the State Government. It is not their opinion that will compel the Railways to act or not act or to do or not to do a certain thing.
12. As far as we can tell from the record, there is no specific application yet under Section 16(1)(a). The Petitioners have protested against the acquisition and in fact, the Affidavit by the State Government says that they have objected to compensation being paid to the owners of the affected land, i.e., the land under acquisition, or the erstwhile owners.
13. We believe it is impossible for a Writ Court to go about the business of aligning roads or prescribing culverts and bridges. That lies in the domain of certain experts. We have to be shown that there is a legally enforceable right and a corresponding duty on the part of the Railway Authorities. Mr Singh does not say that the Railways have no responsibilities under the statute. He is correct again. Indeed they do. But he is also correct in saying that the Railway's obligations are not ones that are required to be performed merely at the instance of every individual. The opinion of the State Page 7 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC Government is required. To our mind, the reason for this is clear. The Section 16(1)(a) accommodation works are actually not specific to an individual. They are public works and they will be for general and not private use. This is why the State Government will be involved and must be involved and it is the opinion of the State Government that will be determinative. But once the State Government forms an opinion that certain accommodation works are necessary, it is then yet open to an individual owner to invoke Section 17. But that can only happen if four things are demonstrated. Firstly, that there is indeed an obstruction requiring accommodation works. Secondly, that the State Government has formed an opinion that accommodation works are necessary and specifying those works. Thirdly, that these accommodation works are insufficient. And fourthly, that the applicant must bear the cost of additional works, but the Railways must also form a subjective opinion that such additional works are necessary and that it agrees to undertake them.
14. For this reason, we believe that the Petitioners' interests are best served by permitting the Petitioners to make an application under Section 16(1)(a) to the appropriate authority.
15. Mr Shenoy on instruction states that the application will be made within two weeks from today. We specifically allow the Petitioners to use all the material that they have troubled to place before us including the photographs, maps, drawings and charts. They are also entitled to ask for an on-site physical assessment or overall survey (not a survey under the Maharashtra Land Revenue Page 8 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 ::: 26-ASWPST-3357-2023.DOC Code, 1966) for a clearer understanding of the situation on the ground. The authority in question is required to hear the Petitioners as also a representative of Respondent No. 5 Mumbai Railway Vikas Corporation Ltd. The authority in question will decide the Section 16(1)(a) application at the earliest possible and, in any event, within six weeks of the application being made. All contentions on both sides are expressly kept open as are any subsequent remedies that the Petitioners may have, including under Section 17 of the Act.
16. The Petition is disposed of in these terms. There will be no order as to costs.
(Neela Gokhale, J) (G. S. Patel, J) Page 9 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:41:45 :::