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A.K. SIKRI, ACTING CHIEF JUSTICE

1. W.P.(C) No.5307/2010 filed by the appellants herein has been dismissed by the Learned Single Judge vide order dated 31 st January, 2012 and questioning that order present Intra-Court Appeal has been filed.

2. The writ petition was filed to restrain the respondents, Railways, Government of NCT of Delhi, MCD and DDA from raising construction of a Foot Over Bridge (FOB) for crossing over the railway tracks near the residential colony of Harkesh Nagar, New Delhi. The appellants petitioners had sought such restraint contending, firstly that they were the owners in occupation of the land near the railway tracks where construction was proposed and were being dispossessed for the said construction and secondly on the ground that this Court in W.P.(C) No.3682/2006 earlier filed by the residents of the colony of Harkesh Nagar for mandamus for construction of a FOB at the said site had been dismissed by this Court vide order dated 04.10.2006 in view of the plea then of the Railways that crossing over the railway tracks at the said site was not permitted; that the residents were crossing railway tracks from the said place by puncturing a boundary wall preventing access to the railway tracks and that there were two Over Head Crossings available at a distance of 1.5 Kms. to 2 Kms. from the said site and thus no direction could be given to the Railways for construction of FOB at the said site.

3. The learned Single Judge in the judgment impugned before us has held that if 'now' the Railways deemed it necessary in the interest of safety of the public residing in the neighbourhood of the railways tracks to construct a FOB at the said site, the said developmental activity in the larger public interest could not be interfered by the Court. As far as the claim of the appellants petitioners to ownership of the land is concerned, the learned Single Judge held that the documents relied upon by the appellants petitioners in this regard are photocopies of Power of Attorney, Affidavits, Agreement to Sell and Purchase and which do not trace the title to the land and cannot be considered as title documents; moreover, the said claim raises disputed questions of fact which the appellants petitioners will have to establish in a civil proceedings and could not be adjudicated in writ jurisdiction.

4. The counsel for the appellants petitioners, on 17.02.2012 when the appeal came up first before us, had contended that there was nothing to show any decision even of the respondent Railways for construction of a FOB at the said site. We had as such asked for the stand of the Railways.

5. Copy of the affidavit dated 12.01.2011 filed by the respondent Railways before the learned Single Judge has since been produced before us. In the said affidavit, it is stated that the shops of the appellants petitioners (for restraining demolition of which writ petition was filed) are within the boundary of railway land and the appellants petitioners are in unauthorized occupation and encroachment of railway land. It further affirms that a FOB at the said site was sanctioned on the demand of the local residents and people's representative and in the interest of the public at large to provide a safe crossing over the railway tracks and since there had been several accidents in the past at the said site and to stop the persons so crossing over the railway tracks from the said site endangering their lives.

8. The counsel for the appellants petitioners has contended that in view of the stand of the Railways in the earlier writ petition, the Railways cannot in change thereof now decide to construct a FOB at the said site.

9. We are unable to agree. The stand of the Railways in the earlier writ petition was as per the then prevailing situation. However, if the experience of five years since then has shown that the railway tracks at the said place cannot be continuously manned/ supervised to prevent people from crossing over endangering their lives and in view thereof the Railways themselves have taken a decision to construct the FOB with financial assistance from the Local M.P. Fund (as pleaded in the counter affidavit), no error can be found in the said decision. Moreover, the decision not to construct or construct a FOB at a particular site is a purely administrative / executive decision and there is no bar to change thereof particularly when cogent reasons are found to exist therefor. Moreover, while this Court in the earlier writ petition was considering the matter from the aspect of whether the residents had a right to mandamus directing construction of a FOB, the perspective now is different.