Joseph Joseph v. Divisional Railway Manager — 1994 DIGILAW 327 (KER)

JUDGMENT K.J. Joseph, J. 1. This is a public interest litigation. Petitioner herein is the Secretary of an unregistered association by name Ambikapuram Development and Cultural Association. The objects of the Association inter alia is to collectively voice the grievances of the residents of the area to the authorities concerned and seek redressal of the public grievances. The Association is constituted with the residents of Ambikapuram area wherein Padiyath Road popularly known as K. S. N. Menon Road, Vijayarama Menon Road and the streets and the lanes adjacent to it. Petitioner claims to be a resident of the said locality also. According to the petitioner, the residents of the locality were put to great havoc due to the flood in the area immediately after the heavy down pour. The water gets collected and over flows the public drainages and roads and submerges with the result that life comes to a stand still. The K. S. N. Menon Road referred to above lies parallel to the railway line proceeding from Ernakulam Junction to Cochin Harbour Terminus. The road starts from the South Over bridge and goes southwards. So in the locality 2 cremation grounds for Hindus situate and a cemetery for Christians attached to the Ambikapuram Christian church. The Ambikapuram area lies on the eastern side of the railway line from Ernakulam Junction to Cochin Harbour Terminus railway line. 2. The water that falls to the ground flows eastwards where there are small waterways to take the same to the Thevara Kanal, The natural drain is from west to east in Ernakulam due to the lie of the land. According to the petitioner, one factor that causes excessive flooding in the area is due to the impediments caused to the smooth flow of rain water on the eastern direction is the R. C. C. drain pipe put by the Railways at the level crossing situates in V. R Menon Road and Padiyath Road Junction. According to the petitioner, one factor that causes excessive flooding in the area is due to the impediments caused to the smooth flow of rain water on the eastern direction is the R. C. C. drain pipe put by the Railways at the level crossing situates in V. R Menon Road and Padiyath Road Junction. According to the petitioner, the other factors inter alia are the lack of oversight of planning to drain off rain water by the local authority viz., the 4th respondent, the Corporation of Cochin, The entire water collected on the M. G. Road enters the culvert situates on the V. R. Menon and culvert established at the K. S. N. Menon Road is unable to empty itself at the other end at Parambithara road due to the railway road and non maintenance of connecting thodu on the eastern side. As a result, the entire area is flooded even when one ram and residents of the locality were put to innumerable difficulties. The blockade of water is aggravated by the non cleaning of the culvers end the accumulation of all sorts of solidified refuses, carcasses, heaps of mud and earth and all other unhealthy and objectionable matter. The R. C. C. pipe established by the Railways blocks free flow of water. The obstruction caused by the railway pipe and accumulation of filth, earth and all other decayed and decomposed solid prevent the flow in the natural condition. Water collected and accumulated in the K. S. N. Menon Road, V. R. Menon Road and its allied roads enters the compounds of the house's of the residents in the locality and thereby the residents were f put to great hardship and the life in the area itself has become miserable. 3. It is the case of the petitioner that members of the Association and the Association approached the Railway authorities and made various representations requesting the Railways to alter the existing culvert R. C. C. Pipe drain into an open drain. They have also approached the 4th respondent Corporation of Cochin to provide canals on either side of the railway track and to divert the water to the nearby Thevara canal. But none of the representations made by the petitioner and the Association represented by him were fruitful. Ext. They have also approached the 4th respondent Corporation of Cochin to provide canals on either side of the railway track and to divert the water to the nearby Thevara canal. But none of the representations made by the petitioner and the Association represented by him were fruitful. Ext. P1 is the copy of the petition sent by some of the members of the Association who are residents in the area to the railway authorities to alter the existing culvert R. C. C. Pipe into an open drain and maintain the same at the level crossing. Copy of the same was forwarded to the 4th respondent, Corporation of Cochin and the 5th respondent, the District Collector, Ernakulam apart from respondents 1 to 3, the Railway Authorities. Ext. P1 is dated 2nd of August, 1987. On behalf of the Railways, the Station Superintendent, Ernakulam Junction had acknowledged the receipt of Ext. Pi as per his acknowledgement dated 7-10-1987 produced by the petitioner 10 this case. But it is the case of the petitioner that there was no response from the Railways Authorities or from the respondents 4 and 5. Therefore, petitioner and the Association were constrained to issue Ext. P2 lawyer notice wherein also it is specifically averred that due to the blockade for free flow of water at the railway crossing, the life of the people are in danger and therefore, requested immediate and urgent action by removing the R. C. C. Pipe covered drain and in its place, construct an open drain so as to enable to take the entire water collected at the drain and enable the authorities to make periodical cleaning of the said drain. On receipt of Ext. P2, Ext. P3 reply was sent by the Railways wherein it is stated that what is required is that the Cochin Corporation has to survey the area, prepare a proper drainage scheme and any additional water way or widening the water way across the railway track has to be done according to the 'Deposit Work' with the local authorities and the State Government coming forward to bear the cost of such proposal. Ext. P3 is dated 4-5-1990. Ext. P3 is dated 4-5-1990. Since the petitioner and members of the Association did not i get any relief either from the Corporation of Cochin or from the railways, they were constrained to approach this Court in this proceedings with a prayer to issue a writ of mandamus or other appropriate writ, direction or order to the respondents to act in concert to take steps to drain off the dirty and filthy rain water stagnant in the K. S. N. Menon Road and at the level cross drainage at Bridge No. 223 at KM 107/11-12 and see that the residents are allowed to reside safely without suffering the dirty and filthy rain water which finds its way to their houses and prevent the outbreak of gastro entrities and hepatitis and other virulent diseases. The petitioner also prayed for a direction to the Corporation of Cochin, the State Government and the Railways to discharge their statutory functions under the Kerala Municipal Corporation Act and the Railways Act and for consequential reliefs. 4. This Original Petition was filed before this Court on 4th June, 1990. When the matter has come up before this Court on 15-6-1990, counsel for Railways sought 10 days time to ascertain and to submit how an effective drainage could be provided in the area. Counsel for the Corporation of Cochin also submitted that he would explore the possibility with the Corporation to undertake the work in case the Railways grant them permission. When the case has come up again for orders on 28-2-1990 the counsel for the Corporation of Cochin, the 4th respondent submitted that they had budgeted an amount of Rs 60,000/- for construction of a drain and this Court further directed the Railways as well as the Corporation of Cochin to file a statement indicating the cost of constructing an open drain in the area at the level cross. 5. Thereafter, on behalf of respondents 1 to 3 the Senior Divisional Engineer, Southern Railways, Trivandrum had filed a counter affidavit dated 8th July 1990. In the said counter affidavit, it is admitted that the open culvert and the pipe culvert under the railway track were constructed by the railways and the bridge/pipe culvert under question was constructed while laying the railway line from Ernakulam to Mattancherry in the year 1940. He has also produced Ext. R3(a) rough sketch of the bridge/pipe culvert. In the said counter affidavit, it is admitted that the open culvert and the pipe culvert under the railway track were constructed by the railways and the bridge/pipe culvert under question was constructed while laying the railway line from Ernakulam to Mattancherry in the year 1940. He has also produced Ext. R3(a) rough sketch of the bridge/pipe culvert. It can be seen from the sketch that the open culvert existing in the area is having a width of 1.8 metres. The pipe culvert adjacent to it is having a width of 1.6 metres. But according to the Divisional Engineer, the approach drain put up on the eastern and western side by the Corporation of Cochin having only a width of 1.3 metres. He has further stated that since the approach drain on either side are very narrow having only a width of 4.3 metres, that may be one of the reasons for flooding in the adjacent arrear. But according to the Divisional Engineer, no point of time water has come to the level of girder and no flooding has taken place at the track side and the pipe culvert withstood the fury of south - western monsoon for the last 5 decades. 6. But the Divisional Engineer in his counter affidavit had stated the reason for preventing the free flow of water through the pipe culvert provided by the Railways and according to him, new constructions have taken place to the east and west of the railway track after the first track was laid in the year 1940 and the 2nd track was laid in the year 1976 and a number of colonies also had sprung up by utilising the places through which the water was flowing by filling up the low lying area which used to absorb rain water. According to the deponent of the affidavit, construction of the residential houses had obstructed the free flow of rain water and the number of surface drain have also been provided discharging water to the drain in question. He has also stated that growth of vegetation on the approach drains outside the railway limits leading to the pipe culvert had also taken place impeding the free flow of water. He has also stated that growth of vegetation on the approach drains outside the railway limits leading to the pipe culvert had also taken place impeding the free flow of water. Thus, it can be seen from the above counter affidavit that water could not be drained out through the railway culvert because of the above reasons stated by the deponent in the counter affidavit referred to above. According to the deponent necessary cleaning of the covered pipe drain also been done and the railway administration is not bound to construct the open culvert replacing the existing pipe culvert since the pipe culvert is sufficient to draw water. But it is stated in the counter affidavit that the Railways have no objection to construct an open culvert in the place of the existing pipe culvert provided the local authorities, or State Government agree to deposit the cost of the same as per S.12 of the Indian Railways Act and in terms of Para.1844 and 1845 of Railway Engineering Code. 7. The counter affidavit was followed by another counter affidavit filed on behalf of respondents 1 to 3 on 26th June, 1991 by the Area Manager viz. the 2nd respondent. In the said counter affidavit, it is stated that the broad gauge railway line from Ernakulam Junction to Cochin Harbour Terminus was constructed in the year 1940 and the railway line as well as the culverts mentioned in the Original Petition were laid and constructed prior to 1977. It is further stated that at the location of Bridge no. 223, there are 3 tracks. The eastern track is the shunting neck. The middle track was serving as main line between Ernakulam and Cochin Harbour Terminus previously and it now serving as the main line towards Alleppey. The portion of this track running on this area of Bridge No, 223 has been laid in 1940 and the track on the western side, which was originally constructed for the line towards Shipyard is now being used as the main line for Cochin Harbour Terminus and the line leading to Shipyard takes off from this line. Construction of this western line was completed in December, 1976. Therefore, all the 3 tracks of railway lines in the area of Bridge No. 223 were constructed atleast 15 years back. Construction of this western line was completed in December, 1976. Therefore, all the 3 tracks of railway lines in the area of Bridge No. 223 were constructed atleast 15 years back. Second respondent in his counter affidavit also stated that while laying the railway line from Ernakulam Junction to Cochin Harbour Terminus, enough care was taken by the railways to provide sufficient vent ways of the water to withstand the fury of south - west monsoon and withstood the severe monsoon condition for years and there was no complaints hitherto regarding the drainage system of the flood water passing through various bridges, including Bridge No. 223 of Ernakulam - Cochin Harbour Terminus Section. It is also stated that since the Railways has provided suitable accommodation works within the stipulated period contemplated under S.16(2)(b) of the Indian Railways Act, the Railway Administration shall not be compelled to provide any other accommodation work for the bridge in existence. The 2nd respondent further stated that as per S.17 of the Act, if the works carried out under S.16 is insufficient for the use of the land owners or if the State Government or a local authority desire to construct further work mentioned therein, they can get it done by making requisition to the Railway Administration at their expense under "deposit work" According to the 2nd respondent, for getting even that relief, the petitioner has to first approach the State Government and only in case they failed to get the relief, they can come to this Hon'ble Court to get the relief. 8. Second respondent, Area Manager, also stated the reason for preventing free flow of water through the covered drains provided by the Railways. According to the 2nd respondent the Corporation and the G. C. D.A. reduced the width of the approach canal and the Corporation had not made adequate provision for proper flow of water and not maintaining the existing drain in the canal in that area. He has also produced Ext. R1 sketch showing the water logged area in south side of the Ernakulam Junction Railway Station referred to in the Original Petition. He has stated in the counter affidavit that Bridge No. 223 is having an area of 1.868 M2 at the opening and 1.560 M2 at the east and 1.575 M2 at the western side. R1 sketch showing the water logged area in south side of the Ernakulam Junction Railway Station referred to in the Original Petition. He has stated in the counter affidavit that Bridge No. 223 is having an area of 1.868 M2 at the opening and 1.560 M2 at the east and 1.575 M2 at the western side. According to the respondent, the complaint that the pipe culvert prevents the smooth flow of water is frivolous and the vent way of the culvert is sufficient; to take the flood water. He has also stated that there are many other places in the city where water is stagnated and not confined to the area in question alone and therefore, according to the 2nd respondent, it is for the Corporation of Cochin to take ameliorative steps to drain out the wafer from the area and there is no statutory duty cast upon the Railways to provide any open drain in the area since according to the 2nd respondent, the lines were laid more than 10 years before and therefore, the Railways cannot be compelled to make any accommodation work as contemplated under S.16 of the Indian Railways Act. After the statutory period of 10 years of the adjacent owners of land or the local authority or the Government are desirous of converting the covered drain to open drain, the same can be done only on "deposit Work" basis as contemplated under Para.1844 and 1845 of the Railway Engineering Code. 9. The petitioners has filed a reply affidavit also wherein it is stated that the dispute is not with regard to the first railway track. What the Railways have done subsequently is that they have laid the railway track Nos. 2 and 3 on hume pipe and closed the remaining area of the culvert or bridge by rubble masonry thereby decreasing the vent way in the remaining portion for a length of nearly 10.90 metres i.e. about 35 feet. The petitioner also stated that no disilting or cleaning is humanly possible in the hume pipe since the length is about 35 feet and the occasional inspection and alleged cleaning had not given any result thereby the flood affected area was released of its havoc. 10. The petitioner also stated that no disilting or cleaning is humanly possible in the hume pipe since the length is about 35 feet and the occasional inspection and alleged cleaning had not given any result thereby the flood affected area was released of its havoc. 10. On behalf of the 4th respondent Corporation of Cochin, a statement also has filed wherein they have stated that on inspection it was found that the size of the pipe culvert provided by the Railways is only 1.02 diameters inside which alone is available for flow of water and the cross section of the Corporation approach drains is 1.5 X 1.5 M2 which means that the pipe culvert is insufficient to take flow of water coming from the Corporation drain. The 4th respondent also said that in the year 1990, Railway Authorities has not removed the silt and cleaned pipe culvert. It is also stated that for a pipe culvert having a total length of 10 to 12 metres, silting is frequent and cleaning once in a year is totally insufficient. According to the Corporation, if the closed drain is made as an open drain, it easy for the Railways as well as for the Corporation to clean the same periodically. It is further stated that when there was only one track, there was no flooding. Subsequently more railway tracks came. The Railways had extended the culvert without widening the culvert and without thinking the practical difficulties of cleaning. They cad asserted that periodical cleaning of the approach drain was always carried out and if the pipe culvert is made into an open culvert, it is always possible to clean as and when the same is required. As in the case of Respondents 1 to 3, 4th respondent Corporation Authorities also expressed their desire and willingness to widen the down stream drain portion soon after the reconstruction of the railway culvert into an open culvert by the railway authorities. The statement concluded by saying that the issue is a long pending and the Corporation authorities have requested the Railway authorities to change the pipe culvert to open culvert when new railway lines are made, According to the 4th respondent, it is the responsibility of the Railways to reconstruct the culvert at their cost. 11. The statement concluded by saying that the issue is a long pending and the Corporation authorities have requested the Railway authorities to change the pipe culvert to open culvert when new railway lines are made, According to the 4th respondent, it is the responsibility of the Railways to reconstruct the culvert at their cost. 11. The above stated facts and the pleadings of the parties would amply prove that the area in question is completely flooded during rainy season. The petitioner as well as the respondents have admitted that the area is flooded and they find fault with each other for the reason for such flooding in the area. According to the respondents 1 to 3, necessary approach drains with sufficient width were not provided by the Corporation authorities on either side of the railway track. They had also stated that the entire water collected on the side of the M. G. Road were also diverted through these culverts by the Corporation authorities which resulted in causing flood in the area. They have also complained that the vegetation on either side of the approach drain were not cleared by the Corporation authorities so as to enable free flow of water. The Railways also finds fault with the coming of the colonies on either side of the railway track and construction of residential buildings therein, which according to them, prevents the free flew of water. 12. On the other hand, according to the Corporation and the petitioner, when there was only one track, from Ernakulam to Cochin Harbour Terminus, there was no flood In the area. It is only after the construction of the 2nd and 3rd railway tracks in the area, the flood had arisen causing innumerable difficulties for the inhabitants in the locality. Sufficient vent ways were not provided by the Railway Authorities. A portion of the existing drain was closed with rubble masonry on the eastern side wherein they had provided 1.6M2 R. C. C. pipe for drainage purpose. Admittedly, the open drainage on the western side is having a width of 1,868 metres whereas even according to the counter affidavit by respondents 1 to 3, the width of the covered drain through R. C. C. pipe is only 1,6 metres. The covered drain through R .C. C. pipe is laid to a length of 35 feet. Admittedly, the open drainage on the western side is having a width of 1,868 metres whereas even according to the counter affidavit by respondents 1 to 3, the width of the covered drain through R. C. C. pipe is only 1,6 metres. The covered drain through R .C. C. pipe is laid to a length of 35 feet. Under such circumstances, the contention raised by the petitioner and the Corporation authorities that cleaning of the covered drain has become practically impossiblehas to be accepted. 13. Admittedly, as can be seen from Ext. R1 plan, the Bridge No. 223 is having an area of 1.868 N2 at the opening and thereafter the railroad is provided on hume pipe (R.C.C. Pipe) having a width of only 1.6 metres as stated in the first counter affidavit filed on behalf of respondents 1 to 3 dated 8th July 1990. In Ext. R3(a) sketch produced by the respondents, the width is so shown as 1.6 metres. Ia the absence of a uniform cross sectional area of the bridge throughout the distance including the 10 90 metres over which R.C.C. pipe is laid, easy flow of water to the eastern side became impossible. Again, the width of the approach drain provided by the Corporation in the eastern side and the western side is having only a width of 1560 metres and 1.575 M2 respectively as is seen in Ext. R1 plan. Narrowness of these drains provided both by the Railways on the eastern side and the Corporation of Cochin on the eastern and western sides of the approach drain is the main reason for the flood in the area and the same has caused irreparable injury and hardship to the people in the locality. The life of the residents of the locality has become miserable. The claim of respondents I to 3 that the entire covered portion of the drain through the R.C.C. pipe to the length of nearly 35 feet is being cleaned regularly also cannot be accepted is correct since it is humanly impossible to clean such R. C. C. pipe drain having only 1 656 M2 width and that too for a total length of 35 feet, over which 2 rail roads have already been laid by the Railways. R. C. C. pipe drain is attached to the open drain having a width of 1.868 M2 over which also the rail track on the western side is laid to Cochin Harbour Terminus. Under such circumstances, I am not inclined to accept the claim of the Railways that regular cleaning of this covered portion of the drain provided through the R. C. C. pipe is being done or could successfully be done by respondents 1 to 3 either through contractors or by the Railways, directly. This resulted the entire area is being flooded even with one rain and life of the people in the locality become miserable, for no fault of theirs. All respondents admit that, there is heavy flood in the locality during monsoon. They have also stated various reasons for such a flood and each finds fault with the oilier. The Railways is shunting their responsibilities over the Corporation and the Corporation on the Railways. The ultimate unfortunate sufferers are the residents of that locality including the petitioner. 14. In the above circumstances, it has to be held that sufficient drainage facilities were not provided in the locality by the Railways as well as by the Corporation of Cochin for a free flow of water in a most important area in the city of Cochin. The question is whether the respondents have any statutory duty to provide sufficient water ways and drainage and maintain the same so as to avoid any flood in the area under the provisions of the Indian Railways Act and the Kerala Municipal Corporations Act. 15. S.11(c) of the Indian Railways Act, 1989 provides that not withstanding anything contained in any other law for the time being in force, a Railway Administration may for the purpose of constructing or maintaining a Railway make drains or conduits into, through or under any lines adjoining the Railway for the purpose of conveying water from or to the Railway as defined under S.2(31) of the Act. Under S.11(e) of the Act, Railway Administration has got the power and duty to alter the existing R.C.C. pipe drain and substitute the same with open drain as it is provided at the western side of the railway line. This statutory provisions would enable the Railway to make an open drain through or under the lands adjoining to the Railway for the purpose of conveying water. This statutory provisions would enable the Railway to make an open drain through or under the lands adjoining to the Railway for the purpose of conveying water. This statutory duty has to be exercised by the Railways when free flow of water is prevented at the covered drain. A Railway which had constructed bridges or culverts over a water course must subsequently maintain the same in proper condition and if subsequently necessary alter and repair the same. If the bridge sufficient to make the requirement at the time it was constructed becomes inadequate through subsequent developments, it is the duty of the Railways to improve it to meet the new conditions. If the drain becomes insufficient by reason of a change of conditions, either by filling up the neighbouring land or coming up the housing colonies or by the cultivation of the land, the Railways must make necessary alterations to suit the changed requirements. Indian Railways Act casts an obligation and duty on the Railway to do all acts necessary for making, maintaining, altering the existing drains. The stand adopted by respondents 1 to 3 that what was done in the year is good for all the time is against the statutory provisions contained in the Railways Act. Learned counsel appearing on behalf of the Railways had submitted that even though S.11 of the Railways Act enables the Railway Administration to execute all necessary work, the said Section is not applicable since the same is subject to the provisions of the said Act and subject also to the provisions of the contract entered between the non governmental railway and the Central Government. Learned counsel also drew my attention to the definition of Non governmental Railway contemplated under S.225 of the Railways Act. There is absolutely no legal basis to sustain the above contention raised by the learned counsel appearing on behalf of the Railways. There is no case for the Railways that the bridge or the culvert or the drain in question were constructed or maintained in the light of any provisions in any contract between any non governmental railway and the Central Government. There is no such pleading for the Railways in the case. Therefore, the further question to be decided is whether there is any other provisions of the Act that prevent the Railway Administration in executing the works contemplated under S.11 of the Act. 16. There is no such pleading for the Railways in the case. Therefore, the further question to be decided is whether there is any other provisions of the Act that prevent the Railway Administration in executing the works contemplated under S.11 of the Act. 16. According to the learned counsel for the Railways, under S.16(2)(b) of the Act, the Railway Administration shall not be compelled to undertake the work of providing an open drain in the place of the covered drain, since the line had been laid more than 10 years before and therefore, such work cannot be undertaken as accommodation works contemplated under S.16 of the Act. 17. S.16 of the Indian Railways Act, 1989 has no application on the facts and circumstances of this case. The said Section deals with accommodation works. Under S.16, the Railway Administration shall make and maintain the accommodation works mentioned in that Section for the owners and occupiers of lands adjoining the Railways (Emphasis supplied), if in the opinion of the State Government such accommodation works are necessary for the purpose of making good any interruptions caused by the Railways to the use of lines through which Railways made and in the opinion of the State Government be sufficient at all times to convey under water as freely from or to lands lying near or affected by the Railway as it was before the making of the Railway. A reading of Section would show that the Railway Administration shall make and maintain accommodation works for the owners and occupiers of the land adjoining the Railway, necessary bridges and drain or other passages for the purpose of making, good any interruption caused by the Railway to the use of the lands through which the railway is made and to convey underwater as freely from or to the lands lying near or affected by the railway as it was before the making of the railway. Such accommodation works are intended only for the owners and occupiers of lands adjoining the railway and not for other persons like the residents of a locality who are adversely affected by the conduct of the Railway. Such accommodation works can be demanded by the State Government at the time of making the railway to protect the interest of the owners and occupiers of lands adjoining the railway over which the railway is made. Such accommodation works can be demanded by the State Government at the time of making the railway to protect the interest of the owners and occupiers of lands adjoining the railway over which the railway is made. Under Sub-s.2 of S.16 of the Act, such accommodation works shall be made at the cost of the Railway Administration during or immediately after the laying out or formation of the Railways and they are bound to undertake such works at their expense only for a period of 10 years from the data on which the railway was opened for public traffic and thereafter if such owners and occupiers require any further accommodation works to be done or if such owners and occupiers consider that the works made under S.16 to be insufficient for the use of the land, or if the State Government or local authority desires to undertake some work across or under or over a railway, such works shall be made at the expense and cost of the owner or occupier or the State Government or local authority, under S.17 of the Railways Act. 18. The petitioner and the respondents have no case that neither the petitioner nor members of the Association which he represents are owners or occupiers of the lands entitled to get the accommodation work done either by the Railway with their fund or on depositing the cost of such work. Only owners and occupiers of the lands adjoining the Railway alone are entitled for accommodation work being undertaken by the Railways (emphasis supplied). Neither the petitioner nor the respondents have a case that their lands were acquired by the Railways for the purpose of laying the railway lines. They are only residents in the locality on the western side of the railway line residing in their own house or on rental house on the side of the different roads like V.R. Menon Road, K. S. N. Menon Road, Alappat Road, Masikath Road, etc. Therefore, there is no question of any accommodation work being undertaken by the Railways for the petitioner or members of the Association he represents under S.16 of the Railways Act arises in this case. The question of Government satisfying themselves the above conditions contemplated under S.16 for the owners and occupiers of the land adjoining the railway also did not arise in this case. The question of Government satisfying themselves the above conditions contemplated under S.16 for the owners and occupiers of the land adjoining the railway also did not arise in this case. So also regarding the undertaking of accommodation works directly by the Railway within 10 years period after laying out or formation of the Railway did not arise in this case. Equally, the question of undertaking the additional accommodation work after the expiry of 10 years period after laying out or formation of the Railway on deposit work also did not arise on the facts pleaded by the parties in this case. Therefore, the contention raised by the learned counsel appearing on behalf of the Railways that the works sought fey the petitioner is to alter the existing covered drain into one of an open drain and thereby making a new drain on that portion of the railway line cannot be considered to be an accommodation works under S.16. As stated earlier, S.16 of the Railways Act enures only to the benefit of the owners and occupiers of lands adjoining the railway and not in respect of the residents of the locality who are not the owners or occupiers of lands adjoining the railways. 19. Learned counsel for the Railways places reliance on S.17 of the Indian Railways Act to substantiate his contention that the petitioner is not entitled to get a direction to convert the covered drain to one of open drain under S.17 of the Act since the same is an additional accommodation work which can be undertaken only at the expense of the owner or the occupier or of the State Government or the local authorities as the case may be. S.17 of the Act also is not applicable in this case since the same is intended only for the owners and occupiers of lands adjoining the Railway if not satisfied that the work done under S.16 or if the Government or the local authority also are not satisfied that the accommodation work done by the Railway under S.16, it is perfectly open for them to request the railway to make additional accommodation works at the cost of such owner, occupier or State Government or local authority. Since S.16 of the Act is not applicable on the facts and circumstances of this case as far as the petitioner, the claim of the petitioner under S.11 of the Act cannot be negatived either under S.16 or under S.17 of the Act. 20. Learned counsel for the Railways also placed reliance on Para.1844 and 1845 of the Railway Engineering Code. Para.1844 of the Railway Engineering Coda deals with procedure for undertaking deposit work. The said rule only provides that all works within the railway premises should be executed only by or under the direct supervision of the Railway authorities and if any authority other than the Railway authority wanted to execute any work, they will have to apply to the Railways with necessary rough sketch for the work and other particular there to and under Para.1845, those deposit works can be under taken by the Railway at the expanse of those persons who require for such work. Para.1844 and 1845 of the Railway Engineering Code are not a substitute for the statutory duties and obligations cast upon the Railways under S.11 of the Act for undertaking such works contemplated under the said Section of the. Act. Para.1844 and 1845 of the Railway Engineering Code have no application at all in this case. 21. In the light of the above statutory provisions, it has to be found that the Railways represented by respondents 1 to 3 has a statutory duty under S.11 of the Indian Railways Act, 1989 to alter the existing covered drain provided at Bridge No. 223 and make an open culvert for the purpose of free flow of water through the drain. Admittedly, the Railways did not discharge that statutory duty cast upon them. The Railway Administration took shelter under S.16(2)(b) and 17 of the Act and Para.1844 and 1845 of the Railway Engineering Code from, not discharging their statutory duty contemplated under S.11 on the ground that the Railway lines were laid more than the statutory period of 10 years prescribed under S.16 of the Act and the owners and occupiers of the land adjoining to Railway who wanted to do the accommodation work did not provide the necessary fund for converting the covered drain into an open drain. I see absolutely no justification for the Railways for not discharging their statutory duties on the above grounds and not exercising their powers under S.12 of the Railways Act. The reasons stated by respondents 1 to 3 in their counter affidavit for not providing an open drain in the area are absolutely insufficient and unjustified in the eye of law for not discharging the statutory duties and functions cast upon them under the Indian Railways Act, 1989 The desire of the Railway authorities to keep lands on either side of the railway line unoccupied without any constructions thereon as it was in the year 1940 or 1976 for flow of water also will not abdicate the respondents from discharging their statutory duties. 22. The contentions of the learned counsel for the petitioner that the 4th respondent Corporation of Cochin also failed to discharge the statutory duties cast upon them under the provisions of the Kerala Municipal Corporation Act also has to be accepted. Under S.179 of the said Act, the Corporation shall so far as the means at their disposal permit, provide and maintain a sufficient system of public drains throughout the city. Under S.184 of the Act, the Commissioner of the Corporation has the power even to connect house drains with the public drains. Under S.196 of the said Act, the Commissioner of the Corporation has every right to provide the drain or channel of any kind and to establish or maintain any system of drainage through any land, across, under or over any road, street after giving reasonable notice to owner or occupier of the said land. The approach drains provided by the 4th respondent on either side of the railway line having only a width of 1.56 M2 and 1.575 M2 also had adversely contributed the free flow of water in the area. The vegetation on the eastern and western side of the approach drain also caused obstruction for the free flow of water to and from the open and the covered drains provided by the Railways. There is absolutely no justifiable legal grounds stated by the 4th respondent in his statement for not discharging the above statutory duty cast upon them. They only find fault with the Railway for causing the flood in the area. There is absolutely no justifiable legal grounds stated by the 4th respondent in his statement for not discharging the above statutory duty cast upon them. They only find fault with the Railway for causing the flood in the area. There is no case for the 4th respondent Corporation that there is no means at their disposal to provide adequate drainage facility in the city. The offer made by the 4th respondent before this Court in the year 1990 budgeting an amount of Rs. 60,000/- for providing a proper drain in the locality continues to be a promising illusory. Learned counsel for the petitioner is, therefore, perfectly justified in his submission that, instead of beautifying the city at the expense of lakhs of rupees of the tax payers and that too at the rainy season itself rather than providing the basic needs and amenities for the people in the city by providing proper drainage and making urgent repairs on the public roads before beautifying the city also is a matter of great concern. The 5th respondent, District Collector of Ernakulam is now discharging the functions of the Mayor of the 4th respondent Corporation Both these respondents did not even to care to file a counter affidavit in the case, justifying their action/inaction in the matter, even though notice in this Original Petition was served on them as early as on the year 1990 itself. It is rather unfortunate to note that persons/ authorities on whom public/statutory duties are cast upon and persons primarily responsible for the well being of the people in the city are purposefully keeping away from their duties and obligations closing eyes to the realities and to the needs of the people and satisfying themselves by filing a statement in Court without discharging the statutory duties which are expected to be performed by them for public good. This is indeed really a sorrowful state of at fairs. The non performance of their duties properly had caused innumerable difficulties and untold miseries to the residents in the area and life becomes horrible for them. The flood in the area has to be drained and proper drainage system has to be provided. This is indeed really a sorrowful state of at fairs. The non performance of their duties properly had caused innumerable difficulties and untold miseries to the residents in the area and life becomes horrible for them. The flood in the area has to be drained and proper drainage system has to be provided. It is the statutory duty of the respondents to take all urgent and effective steps to provide a proper drainage at the level cross at Bridge No. 223 at KM 107/11-12 at Ernakulam and I am satisfied that the respondents have miserably failed in discharging the statutory duties cast upon them in this matter. In the above circumstances, I direct respondents 1 to 3 to alter the existing covered drain provided through R. C. C. pipe at the Railway Bridge No. 223 at KM 107/11-12 into an open drain and make a new drain so as to enable free flow of water through the said drain at their expense. Respondents 1 to 3 shall comply with the above directions within a period of two months from the date of receipt of a copy of this judgment. Respondents 4 and 5 are also directed to remove the vegetation on either side of the approach drains to the railway drains at the above place forthwith and also widen the existing approach drains on the eastern and western side of the railway line in such a way to absorb all the drain water within a period of two months from the date of receipt of a copy of this judgment. The Original Petition is allowed, but, there will not be any order as to costs.