Judgment : The petitioner is a Private Limited Spinning Mill, manufacturing Cotton yarn. It is situated in survey Nos. 557-A, 558-A, 555-B and 559, Chatrampudhkulam Village, Thatchanallur, Tirunelveli District. At the time of filing of the Writ Petition, there were about 300 employees in the Mill. Originally, in the year 1953, Lakshmi Manure Works was functioning in the above said Survey Numbers, where the petitioner Mill is presently situated. The area abuts National Highway in the front. The only access to the petitioner Mill is from National Highway. In the year 1970, the said Lakshmi Manure Works was would up and the petitioner-Spinning Mill was started. 2. The petitioner has further submitted that a Railway track runs through their kind parallel to the National Highway. The land on both sides of the track in the above said survey Numbers belong to the petitioner. In they year 1953, when Lakshmi Manure Works proposed to set up Lakshmi Manure Works, there was no level crossing in front of the factor’s entrance gates. 3. The petitioner has further submitted that the factory was approved by the Chief Inspector of Factories on 27. 1953. To have access to Lakshmi Manure Works site, Railways was requested to provide a level crossing and accordingly, it was provided in the year 1953. An agreement was entered into between Southern Railway and Lakshmi Manure Works on 8. 1953, to allow free access to vehicular traffic and other connected works. The cost towards laying of the level crossing was met by Lakshmi Manure Works. The annual maintenance cost of the unmanned level crossing was also born by Lakshmi Manure Works and it is now paid by the petitioner. .4. The petitioner has further submitted that beyond the Mill, there is a small village and thereafter, there is a river, called Thamaraparani. There is no other access to the petitioner Mill, excepting to cross over the railway lines. Therefore, to ensure safety of the workmen and the vehicles which cross the railway line at frequent intervals, Railways have permitted Lakshmi Manure Works to put up gates far beyond the Railway line at the entrance of the level crossing in survey No. 558-B, which belong to the said factory and to operate the gates by the staff. Accordingly, the said factory also put up gates in their land and operated the same by their staff. 5. Accordingly, the said factory also put up gates in their land and operated the same by their staff. 5. The petitioner, who succeeded Lakshmi Manure Works, also observed the terms and conditions, as agreed to between Lakshmi Manure Works and the Railways. All of a sudden, the Divisional Railways Manager, sent a letter, dated 24. 2000, stating that the Railways had noticed that gates have been provided on both sides to the unmanned level crossing No. 15 at Km 24/10 in Tirunelveli-Thalaiyuthu Section and that the same is highly irregular. The Divisional Railway Manager, the 2nd respondent has sought for remarks from the petitioner, as to how the gates were provided without permission. 6. The petitioner has sent a detailed reply, on 15. 2000, pointing out that even in the year 1953, gates were provided as per the instructions of the Southern Railway and blue print of the site plan of the Mill as approved by the Chief Inspector of Factories also shows the position of the gates, on either side of the Railway line. One gate is in between the National Highway and the Railway track and the other is near Mill entrance gate, close to the compound wall. It was also explained in the reply that maintenance cost is being paid by the Mill periodically and that gates were provided to ensure safety. In response to the said letter, the second respondent, by its letter, dated 16. 2000, stated that if manning is required at the above level crossing, a fresh agreement has to be executed and manning of level crossing by the mill staff would not be permitted. Therefore, the 2nd respondent directed the petitioner to remove the gates and to withdraw manning by the mill staff, failing which, the level crossing would be closed without any intimation. 7. The petitioner has further submitted that by their letter, dated 26. 2000, they requested the 2nd respondent to give a copy of the agreement, dated 8. 1953, entered into between Lakshmi Manure Works and Railways and also requested to furnish the details of the cost towards annual maintenance charges that they may have to pay in the event of taking a decision for manning of level of crossing by Railways. In reply to the letter of the petitioner, the 2nd respondent sent a copy of the agreement, dated 8. In reply to the letter of the petitioner, the 2nd respondent sent a copy of the agreement, dated 8. 1953 and further stated that the approximate capital cost required for manning the unmanned level crossing No. 15 at Km 24/10 between Tiruneveli and Thalaiyuthu Section would be Rs. 8.5 lacs. In addition, the approximate annual recurring maintenance charges would be Rs.3.5 lacs per annum or a lumpsum payment of Rs.45 lacs, towards one time lumpsum payment for maintenance charges. Considering the heavy liability attempted to be mulcted, the petitioner removed the gates between the Highway and Railway track. The petitioner also did not seek for manning of level crossing from Southern Railways. 8. Though the petitioner did not make any payment as directed, the second respondent, by his letter, dated 17. 2000, directed the petitioner to send an acceptance letter, as a token of their concurrence to bear the capital cost, as well as, the annual recurring and maintenance cost required for manning the level crossing immediately, if it was required to be manned. It was further stated that till the receipt of acceptance from the petitioner, the approach road of the level crossing would be closed, by means of a barricade, which would permit only movement of pedestrian across the level crossing. 9. Onreceipt of the said letter, the petitioner informed the authorities that they were wiling to remove the gates put up in their land and also informed that many vehicles are using the level crossing, including the vehicles owner by the Mill for carrying raw materials, cotton bales etc., and finished goods. If barricades were to be kept, then the functioning of the Mill would come to a stand still and over 300 families would suffer, as the Mill have to be closed down. Therefore, by letter, dated 37. 2000, a detailed representation was sent to the General Manager, Southern Railways, the 1st respondent, requesting him to continue the gate put up by the Mill, which was in operation for the last 47 years. But there was no reply. Therefore, the petitioner again sent a representation, dated 112. 2000, to the second respondent and informed that they may be allowed vehicular movement, a per the agreement, dated 8. 1953, which is very much necessary to run the factory and further informed them that the gate between the National Highway and the Railway track has been removed. 10. Therefore, the petitioner again sent a representation, dated 112. 2000, to the second respondent and informed that they may be allowed vehicular movement, a per the agreement, dated 8. 1953, which is very much necessary to run the factory and further informed them that the gate between the National Highway and the Railway track has been removed. 10. By letter, dated 14. 2001, the second respondent informed the petitioner that action would be taken with regard to closure of approach of the level crossing and a provision of barricade would be made, which will permit only pedestrian movement across the level crossing. Immediately, the petitioner met the Section Engineer, i.e. the 3rd respondent and explained the difficulties which would be faced by the Mill, if a barricade has to be put up by the Railways. Without considering the usage of level crossing for so many years and hardship to be faced by the Mill, the second respondent, issued a letter, dated 24. 2001, asking the petitioner to approach the Railways within a period of seven days for manning the level crossing, failing which, the level crossing would be converted into pedestrian crossing as on 5. 2001. In these circumstances, the petitioner has come forward with the present Writ Petition, to quash the above said order and consequently, prayed for a direction to the respondents to permit them to continue to have their gates and staff provided by them, to man the level crossing No.15 at KM 24/10 in Thirunelveli-Thalaiyuthu Section in Survey No. 558-B, Chatrampudhukulam Village, Thatchanallur, Tirunelveli and for further orders. 11. In the counter affidavit, the Divisional Railway Manager (Works), Works Branch, Madurai, second respondent, has stated that on 18. 2006 at 11.00 hours, a mini van bearing No. 72 K 2389 trespassed, without following the provisions of Motor Vehicles Act, 131 of 1988 and Railway Act 164 of 1989, was hit by train No.725 Passenger, at KM 24/10-11 at unmanned Level Crossing No.15 between Talayuthu and Tirunelveli station. The van was proceeding from the petitioner’s mill to NH 7 Road. The petitioner-mill is located at a distance of 17.15 meters from the center of the level crossing, and the edge of the NH 7 Road is at 12.90 mts from the center of the level crossing gate. The van was dragged on to a distance of 34.60 mts. The van was proceeding from the petitioner’s mill to NH 7 Road. The petitioner-mill is located at a distance of 17.15 meters from the center of the level crossing, and the edge of the NH 7 Road is at 12.90 mts from the center of the level crossing gate. The van was dragged on to a distance of 34.60 mts. from the level crossing to wards Tirunelveli side and left at 8.30 mts., away from the center of the track. The driver of the van and a boy standing aside of the level crossing with a cycle were killed and that the vehicle was completely damaged. Statutory warning Boards, such as Rail post, Stop Board and Speed breaker boards are already provided. On both sides, speed breakers are available. The track is visible upto a distance of 300 mts from level crossing towards Talayuthu side, facing the direction of movement of the train. Boards are provided at a distance of 600 mts. On either side of the level crossing gate as per standards and the petitioner was advised, vide the impugned letter, dated 17. 2000, to give their consent on deposit terms for conversion of level crossing into a manned one. 12. The second respondent has further submitted that at preset, manning of level crossing has become necessary, due to heavy increase in the volume of traffic (16 pairs of passengers train apart from a number of good trains) and considering the increase in speed of the trains due to the introduction of powerful diesel locomotives and introduction of super fast trains in this Section at a maximum speed of 100 kmph. Further due to utilization of line capacity upto 81.5%, it was felt necessary by the Railway Administration to convert the unmanned level crossing No. 15 at KM 24/10-11 to that of a manned level crossing. 13. Placingreliance on Clause 14 of the agreement entered into between the predecessors of the petitioner’s company for opening of the level crossing, the second respondent has further submitted that even at the time of execution of the above said agreement , the erstwhile factory had already agreed that if at a later date, the provision of gates and gate keepers to man the gates was found necessary, as a precautionary measure, the said factory would agree to bear the charges, both recurring and non recurring expenditures. It is further submitted that Railways have an absolute authority for closure of any level crossing gate, vide Clause 2 of agreement, without assigning any reason and no compensation can be claimed for that. However, in the interest of safety of the public and travelling passengers, the Railway administration was constrained to operate the gate, as manned level crossing duly collecting the requisite charges. 14. The second respondent has further submitted that the level crossings shall be the exclusive property of the government and the licensees shall not claim or acquire any right of way thereto on account of their having paid the cost of the work. The Government reserve to themselves the right to close or reconvert or alter the level crossing at any time without assigning any reason and the licensees shall not be entitled to payment of any compensation therefore. According to him, in Madurai division, during the financial year 2004-05, more than 3 level crossing gate accidents have taken place and 2 lives were lost including, the properties of the people using the unmanned level crossings. Similarly, during the year 2005-06 and till the date of filing of the counter affidavit, 3 level crossing gate accidents have taken place, resulting in the loss of life of 3 persons. 115. According to the second respondent, the track is heavily engaged and in the interest of the safety of public, speed restriction for important trains at 50 kmph have to be imposed as against the permissible speed of 100 Kmph on this Section, due to this restriction on level crossing. Therefore, in order to protect the safety of the people using the above unmanned level crossing gate, the petitioner was directed to deposit the charges for converting it into a manned level crossing gate and there is no reply from the petitioner. In these circumstances, the respondents have prayed for dismissal of the writ petition. .16. Taking this Court through the agreement, dated 8. 1953, entered into between Railways and Lakshmi Manure Works, Mr.S. Silambanan, Learned senior counsel for the petitioner submitted that Railways have already agreed to provide an unmanned ‘C’ Class level crossing for free access to vehicular traffic and carry out other connected works at the cost of the licence. The need for continuing the level crossing was also implicitly confirmed by the second respondent, in his letter, dated 16. The need for continuing the level crossing was also implicitly confirmed by the second respondent, in his letter, dated 16. 2000, wherein, the second respondent has stated that if manning is required at the level crossing, a fresh agreement has to be executed with Railways on term deposit. Therefore, having accepted the case of the petitioner and arrived at a prima facie conclusion of the need for providing a manned level crossing, it is not open to the Railways to close down the level crossing with barricades, which would affect vehicular traffic as well as the use of the said level crossing by the villagers. 117. Referring to Section 11 (1)(a) and 13 of the Railways Act (9 of 1890), learned senior counsel submitted that it is the duty of the Railway Administration to make and maintain convenient level crossings, provide suitable gates, chains, bars, handrails at places were railway crosses a public road on the level crossings. 118. Referring to Clause 14 of the agreement, dated 8. 1953, wherein, it is stated that if at a later date, the provision of gates and gate keepers to man the gates is found necessary as a precautionary measure, the licenses shall agree to bear the charges both recurring and nonrecurring due on this account, Learned senior counsel submitted that the second respondent has erred in directing the petitioner to remove the gates put up in their land, stating that the provision of the gate and staff for manning the same, breaches Clause 14 of the agreement. According to learned senior counsel, Clause 14 would come into operation only if the petitioner puts up a gate in the land belonging to them and putting up gates on the petitioner’s land for the safety of the workmen and to prevent accidents, would not amount to breach of contract. Therefore, he submitted that withdrawing the facility of level crossing by the Railways, is arbitrary. 119. Therefore, he submitted that withdrawing the facility of level crossing by the Railways, is arbitrary. 119. Referring to the provisions in Indian Railways Permanent Way Manual and the averments in the additional counter affidavit that there is a heavy increase in volume of traffic and speed of the trains, due to introduction of powerful Diesel and Locomotive and accidents, which had occurred at the level crossing No.15 between Talayuthu and Tirunelveli Station, Learned senior counsel further submitted that when Railways themselves have admitted the traffic density and regular plying of vehicles, at the unmanned level crossing, it is the duty of the Railways to provide gate and staff to man the level crossing and the expenditure cost should not be thrust upon the petitioner. According to him, the Manual makes it clear that if an unmanned level crossing is involved in more than three accidents in three years, it should be manned immediately, irrespective of the category to which it belongs. Such being the condition in the Manual, the directions of the respondents, thrusting the petitioner to bear the annual recurring and maintenance charges (AMC), and to pay a huge sum of Rs. 45,00,000/- towards One Time Lumpsum payment for the maintenance charges, is in contravention of the Manual and therefore, he submitted that there is a failure on the part of the respondents in performing their public duty to prevent accidents and provide a manned level crossing. 120. Per contra, Mr. N. Sampath, learned counsel appearing for the respondents submitted that the agreement, dated 8. 1953, had been entered into between Railways and Lakshmi Manure Works and the petitioner is not a privy to the contract. He therefore made a preliminary objection to the maintainability of the Writ Petition, filed on the basis of the said agreement. 121. Learned counsel for the respondents further submitted that even assuming that the petitioner can claim certain benefits extended to by the Railways, by virtue of an earlier agreement, the terms and conditions of the same, would govern the petitioner also. In that context, he referred to Clauses 2,5 and 14 of the agreement, dated 8. 1953 and submitted that the level crossing put up at KM 24/10-11, shall be the exclusive property of the Government and that the licence shall not claim or acquire any right of way thereto, on account of their having paid the cost of the work. In that context, he referred to Clauses 2,5 and 14 of the agreement, dated 8. 1953 and submitted that the level crossing put up at KM 24/10-11, shall be the exclusive property of the Government and that the licence shall not claim or acquire any right of way thereto, on account of their having paid the cost of the work. He further submitted that the Government reserve to themselves the right to close, reconvert or alter the level crossing at any time, without assigning any reason and therefore, merely because the erstwhile factory was given permission for use the level crossing, the right of way, cannot be simply be transferred in the name of the petitioner or any other person. 122. According to the learned counsel for the respondents, Clause 5 of the said agreement imposes a restriction that the licence shall not transfer or sublet the privileges mentioned in the agreement, without prior consent in writing to the Government. He therefore submitted that the petitioner has no legal right to demand provision of a gate and manned level crossing at the place mentioned supra. Even assuming for argument sake that the petitioner has a right to use the level crossing, he submitted that recurring and non-recurring expenses for providing gate and gate keeper to man the gates, if found necessary as a precautionary measure, have to be borne by the petitioner and the petitioner cannot seek for provision of manned level crossing at the cost of Railways, contrary to the terms and conditions of the agreement. 20.23. Taking this Court through the provisions in Indian Railways Permanent Way Manual, learned counsel for the respondents further submitted that unmanned level crossings have been categorised into three categories, based on number of TVUs, number of Road Vehicles and Visibility. He further submitted that due to heavy increase in the volume of traffic and considering the increase in the speed of the trains, it was felt necessary by the railway administration to convert the level crossing No. 15 at KM 24/10-11, to that of manned level crossing. He further submitted that due to heavy increase in the volume of traffic and considering the increase in the speed of the trains, it was felt necessary by the railway administration to convert the level crossing No. 15 at KM 24/10-11, to that of manned level crossing. But, reiterating the specific clauses in the agreement stated supra, he further submitted that payment of requisite charges is obligatory on the part of the beneficiaries and therefore, the direction of Railways to the petitioner to pay necessary charges and in the alternative, to convert the level crossing into a Pedestrian level crossing, cannot be said to be arbitrary or irrational in the light of the specific terms and conditions of the agreement. For the above said reasons, he submitted that the Writ Petition is liable to be dismissed. 224. Heard the learned counsel for the parties and perused the materials available on record. 225. Before adverting to the facts of this case, this Court deems it fit to extract few provisions of the Railways Act (24 of 1989). For the above said reasons, he submitted that the Writ Petition is liable to be dismissed. 224. Heard the learned counsel for the parties and perused the materials available on record. 225. Before adverting to the facts of this case, this Court deems it fit to extract few provisions of the Railways Act (24 of 1989). Section 11 deals with the power of railway administration to execute all necessary works and it reads as follows: “Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of this Act and the provisions of any law for the acquisition of land for a public purpose or for companies, and subject also, in the ease of a non-Government railway, to the provisions of any contract between the non-Government railway and the Central Government, a railway administration may, for the purposes of constructing or maintaining a railway- .(a) make or construct in or upon, across, under or over any lands, or any streets, hills, valleys, roads, railway, tramways, or any rivers, canals, brooks, streams or other waters, or any drains, water-pipes, gas-pipes, oil-pipes, sewers, electric supply lines, or telegraph lines, such temporary or permanent inclined-planes, bridges, tunnels, culverts, embankments, aqueducts, roads, lines of Railways, passages, conduits, drains, piers, cuttings and fences, in-take wells, tube wells, dams, river training and protection works as it thinks proper: .(b) alter the course of any rivers, brooks, streams or other water courses, for the purpose of constructing and maintaining tunnels, bridges, passages or other works over or under them and divert or alter either temporarily or permanently, the course of any rivers, brooks, streams or other water courses or any roads, streets or ways, or raise or sink the level thereof, in order to carry them more conveniently over or under or by the side of the Railways; .(c) make drains or conduits into, through or under any lands adjoining the railway for the purpose of conveying water from or to the railway; .(d) erect and construct such houses, warehouses, offices and other buildings, and such yards, stations, wharves, engines, machinery apparatus and other works and conveniences as the railway administration thinks proper; .(e) alter, repair or discontinue such buildings, works and conveniences as aforesaid or any of them and substitute others in their stead; .(f) erect, operate, maintain or repair any telegraph and telephone lines in “connection with the working of the railway; .(g) erect, operate, maintain or repair any electric traction equipment, power supply and distribution installation in connection with the working of the railway; and .(h) do all other acts necessary for making, maintaining, altering or repairing and using the railway.” 26. Section 13 deals with the protection for government property and it reads as follows: “Nothing in Sections 11 and 12 shall authorise- .(a) a railway administration of the Government railway to do anything on or to any works, lands or buildings vested in, or in the possession of, a State Government without the consent of that Government; and .(b) a railway administration of non-Government railway to do anything on or to any works, lands or buildings vested in, or in the possession of, the Central Government or a State Government, without the consent of the Government concerned.” 27. Admittedly, the railway line is situated adjacent to the petitioner’s Spinning Mill, at Mile M.T.402/5-6 between Talayuthu and Tirunelveli Station and defined as “KM24/10-11.” Earlier, in the year 1953, Lakshmi Manure Works was functioning in the same place, where the petitioner is now operating the Mill and Railways have entered into an agreement on 8. 1953, wherein, the Administration had agreed to provide an unmanned ‘C’ class level crossing. 28. Clauses 2,3,5,6,14 and 16 of the agreement, dated 8. 1953 are relevant and they are extracted hereunder: “2. The level crossing shall be the exclusive property of the Government and the Licensees shall not claim or acquire any right of way thereto on account of their having paid the cost of the work. The Government reserve to themselves the right to close, reconvert or alter the level crossing at any time without assigning any reason and the licensees shall not be entitled to payment of any compensation the refer. All the materials used in the crossing shall remain the property of the Government. 3. The ordinary maintenance of the level crossing shall be carried out by the Government the cost and expenses of the Licensees who shall pay annually the actual maintenance charges incurred in respect thereof to the Regional Accounts Officer of the Railway at Trichy. 5. The Licensees shall not transfer or sublet the privileges mentioned herein without the prior consent in writing of the Government. 6. Should at any time the Government require the closing down of the level crossing the same shall be done by the Deputy Chief Engineer giving 30 day’s notice in writing to the Licensees…. 14. 5. The Licensees shall not transfer or sublet the privileges mentioned herein without the prior consent in writing of the Government. 6. Should at any time the Government require the closing down of the level crossing the same shall be done by the Deputy Chief Engineer giving 30 day’s notice in writing to the Licensees…. 14. If at a later date, the provision of gates and gate keepers to man the gates is found necessary as a precautionary measure, the licensees shall agree to bear the charges both recurring and nonrecurring due on this account. 16. The licensees shall agree to bear the cost of any future additions or alteration to this level crossing that may be found necessary from time to time and also the additional actual maintenance charges as a result of future improvements. The decision of the Railway administration in this regard to the necessity for such works shall be final.” 29. Pleadings disclose that during April’ 2000, Railways have noticed that gates had been provided on both sides at KM 24/10-11 and the same were operated by the staff of the petitioner. Therefore, by letter, dated 24. 2000, the Divisional Railway Manager, Southern Railway, Madurai, second respondent, has called for remarks from the petitioner, as to how they have provided the gates, without getting prior permission from the Railway authorities. 30. By reply, dated 15. 2000, the petitioner has stated that in 1953, while providing level crossing to ensure safety of the workmen, likely to cross the Railway line at frequent intervals and to check unscrupulous traffic passing through the level crossing, which might hinder the movement of the trains, Lakshmi Manure Works was instructed by Railways to put up gates at the level crossing, on either side of the railway line in the plot bearing Survey No. 558B, belonging to the petitioner-company, marked in the blue print of the site plan of Lakshmi Manure Works. The petitioner has further stated in their explanation that such arrangement had averted several accidents and it was also known to the Railways at the time of putting up the gates. The petitioner has further stated that as the Principal promoter of the Company and his son are not alive, the above said facts could not be established. The petitioner has further stated in their explanation that such arrangement had averted several accidents and it was also known to the Railways at the time of putting up the gates. The petitioner has further stated that as the Principal promoter of the Company and his son are not alive, the above said facts could not be established. In the above said explanation, the petitioner has also stated that gates were not put up in Railway property and therefore, there was no encroachment, causing hindrance to Railways. 31. Per contra, the second respondent, in his letter, dated 16. 2000, has stated that plans were not approved by the Railways and that gates have been provided, without getting any approval from Southern Railways. But he has admitted that as per the agreement, dated 8. 1953, charges are being annually/regularly paid for maintenance of the unmanned level gates at Km. 24/10-11. By the above said letter, the second respondent has directed that the petitioner should remove the gates and withdraw manning by their staff, failing which, the level crossing would be closed for breach of Clause 14 of the Agreement, dated 8. 1953. It has also been made clear that manning of level crossing by the petitioner-Mill was strictly prohibited and if manning was required, a fresh agreement has to be executed with the Railways for execution of work by the Railways on deposit terms and that the petitioner should bear the annual recurring and maintenance charges as per the existing rules. 32. Pleadings disclose that in response to the same, the petitioner has sent a reply, dated 26. 2000, requesting the respondents to furnish a copy of the agreement, dated 8. 1953 and also to give details of the amount, towards Annual Maintenance Charges, which may have to be paid in the event of any decision taken by the petitioner for manning the level crossing by Railways. Thereafter, the second respondent, by his letter, dated 7. 2000, has furnished a copy of the said agreement and further stated that the approximate capital cost required for manning the unmanned level crossing No. 15 at Km 24/10 between Tiruneveli and Thalaiyuthu Section would be Rs.8.5 lacs. In addition, the Railways have also stated that the approximate annual recurring maintenance charges would be Rs.3.5 lacs per annum or a lumpsum payment of Rs.45 lacs towards one time lumpsum payment for maintenance charges. 33. In addition, the Railways have also stated that the approximate annual recurring maintenance charges would be Rs.3.5 lacs per annum or a lumpsum payment of Rs.45 lacs towards one time lumpsum payment for maintenance charges. 33. When the petitioner did not sent any reply to the above said proposal made by the Railways, the second respondent has sent a letter, dated 17. 2000, to the petitioner to send an acceptance letter, as token of their acceptance to bear the capital cost as well as the annual recurring and maintenance cost, required for manning the disputed level crossing immediately, if it was required to be manned. While instructing the petitioner to send an acceptance letter, the second respondent, has also intimated the closure of the level crossing by means of a barricade, which would permit only movement of pedestrians across the level crossing. 34. Thus, it could be seen from the sequence of events that pursuant to the agreement, dated 8. 1953, executed between Railways and Lakshmi Manure Works Ltd., the said factory had been enjoying the provision of level crossing, subject to payment of actual maintenance charges. The contention of the petitioner that the present Mill had come into existence in the year 1970 and since then, they have been paying maintenance charges for the unmanned level crossing, is also not disputed. It is also fortified by the letter, dated 16. 2000 of the second respondent. Therefore, the contention of the learned counsel for the respondents that the petitioner has no legal right to seek for enforcement of the terms and conditions of the contract, cannot be accepted for the reason that, for over 30 years, ever since the petitioner had started operating the Mill, Railways had been collecting the annual maintenance charges and therefore, it is too late in the day to invoke Clause 5 of the Agreement, dated 8. 1953, which states that erstwhile licencee cannot transfer or sublet the privileges mentioned in the agreement without the prior consent in writing of the Government. Railways have impliedly accepted the continuance of the terms and conditions by the petitioner and the privileges are being enjoyed by them for over three decades. It could be deduced from their conduct that Railways impliedly consented for transfer of the privileges under the agreement to the petitioner. 35. Though by letter, dated 26. Railways have impliedly accepted the continuance of the terms and conditions by the petitioner and the privileges are being enjoyed by them for over three decades. It could be deduced from their conduct that Railways impliedly consented for transfer of the privileges under the agreement to the petitioner. 35. Though by letter, dated 26. 2000, the petitioner-Company has requested for details of the amount towards annual maintenance charges, in case, if they decide for manning of the level crossing by Railways, but the respondents, by its letter, dated 7. 2000, have decided to close the level crossing, by putting up a barricade, which would permit only movement of pedestrians across the level crossing, till the receipt of an acceptance letter from the petitioner-company. Reverting back to the instructions in the letter of the second respondent, dated 16. 2000, it could be seen that earlier, the petitioner was only directed to make immediate arrangements to remove the gates and to withdraw manning by their staff for violation of Clause 14 of the agreement, dated 8. 1953. So the intention of the Railways at the relevant time was not to permit erection and maintenance of gates by the petitioner through their staffs, though the said gates were stated to have been put up within the lands in Survey No. 558 belonging to the petitioner. The said letter further reads that if manning was required a the level crossing, a fresh agreement has to be executed with the Railways on deposit terms and for manning of the gates by the Railways, with an acceptance to bear the annual recurring and maintenance charges. Nowhere in the correspondence exchanged between the parties, Railways have decided to put up a barricade, permitting only pedestrian movement across the level crossing. .36. As per Clause 4 of the agreement, dated 8. 1953, the licensee shall at their own expenses undertake and maintain such portion of the work, as is situated outside the Railway limits. However, the agreement, does not speak of putting up of gates and manning the same by staff of the petitioner. .36. As per Clause 4 of the agreement, dated 8. 1953, the licensee shall at their own expenses undertake and maintain such portion of the work, as is situated outside the Railway limits. However, the agreement, does not speak of putting up of gates and manning the same by staff of the petitioner. As per the agreement, the Government have agreed to provide an unmanned ‘C class level crossing at M.T.402/5-6 with a whistle board at mile M.T.402/0 as shown in the plan No.GW.2508-52/1 to all free access to vehicular traffic and carry out other connected works at the cost of the licensee, subject to the terms and conditions of the agreement. It is not in dispute that there are provisions in the agreement, reserving absolute right to the Railways or close, reconvert or alter the level crossing and at the same time, when payments are made promptly, it is not open to the respondents to take advantage of their position and close down the level crossing by means of a barricade, permitting only movement of pedestrians. 37. Forcing the petitioner to send an acceptance letter for payment of annual maintenance charges, required for manning of level crossing and on failure to do so, closing down the level crossing by means of a barricades, would tantamount to exercise of undue influence by Railways and this Court is of the view that it is not in consonance with the terms and conditions of the agreement. Even as per Clause 6 of the agreement, if the Government decides to close down the level crossing, the same can be done by the Deputy Chief Engineer only after giving 30 days’ notice in writing to the Licencee. 38. Perusal of the letter, dated 37. 2000, addressed to the General Manager, Railway Administration, Southern Railway, Chennai, first respondent, shows that a request has been made for continuance of the gates, as they have existed for more than 47 years, without any impediment to the functioning of Railways and it was also a source of safety for all concerned. Though there was no reply from the first respondent, the petitioner in their letter, dated 112. Though there was no reply from the first respondent, the petitioner in their letter, dated 112. 2000, addressed to the second respondent, has informed that it would make immediate arrangements to remove the gates and withdraw manning done by their staff and also requested that the company may be allowed vehicle movement, as per the agreement, dated 8. 1953. Again, the petitioner has sent a letter, dated 112. 2000, to the same authority to consider the practical difficulties that would arise out of closure of level crossing or removal of gates. Notwithstanding the request made by the petitioner, the senior Divisional Engineer, Co-ordination, Divisional Office, Works Branch, Madras, by his letter, dated 14. 2001, has directed the Additional Divisional Engineer, Tirunelveli, to take action, regarding the closure of approach of Level Crossing No. 15, at KM.24/10 in Tirunelveli-Talayuthu Section and to provide a barricade, which would permit only pedestrian movements across the level crossing immediately on or before 24. 2001, without fail. On 24. 2001, the Section Engineer, Permanent Way, Tirunelveli, has directed the petitioner to approach the Railways within 7 days for manning the level crossing or otherwise, the level crossing would be converted into pedestrian crossing as on 5. 2001. .39. As stated supra, as per the agreement, it was only an unmanned level crossing, subject to certain terms and conditions of the agreement. It is not in dispute that the petitioner has put up gates on their place and manned the level crossing for the safety of the workmen, vehicular movement and general public. There was no condition in the said agreement that in the event of wrong usage, level crossing would be converted into a pedestrian crossing by putting up a barricade. As per Clause 14, if at a later date, the provision of gates and gate keepers to man the gates, to be found necessary as precautionary measure, the licencees should agree to bear the charges, both recurring and nonrecurring due on this account. In the case on hand, by letter, dated 112. 2000, addressed to the second respondent, the petitioner has categorically informed that they would make immediate arrangements to remove the gates and withdraw manning done by their staff, so as to allow them to use the vehicle movement, as per the agreement, dated 8. 1953, which is in vogue for the past 47 years. 2000, addressed to the second respondent, the petitioner has categorically informed that they would make immediate arrangements to remove the gates and withdraw manning done by their staff, so as to allow them to use the vehicle movement, as per the agreement, dated 8. 1953, which is in vogue for the past 47 years. When the terms of the agreement permit only an unmanned level crossing at the above said point, subject to payment of the annual recurring and maintenance charges, closure of the level crossing, by invoking Clause 2 of the agreement, would affect the interest of the petitioner as well as the villagers, said to be residing close to the Mill. It is not the case of Railways that due to some accidents occurred at the level crossing, they have decided to close down the level crossing or put up a barricade. But they have decided to convert the same into a manned level crossing and collect the annual recurring and maintenance charges from the petitioner. If the petitioner are not willing to provide manning by Railways, atleast they can be allowed to use the level crossing, as provided in the agreement, on payment of necessary charges. Thrusting the petitioner with an onerous condition to pay the lumpsum payment, for provision of gates and manning by the Railways, is arbitrary. 40. At Paragraph 3 of the counter affidavit, the respondents themselves have admitted that at present, manning of level crossing has become necessary, due to heavy increase in the volume of traffic (16 pairs of passengers train apart from a number of good trains) and considering the increase in speed of the trains due to the introduction of powerful diesel locomotives and introduction of super fact trains in this Section at a maximum speed of 100 kmph. Further, due to utilization of line capacity upto 81.5%, it was felt necessary by the Railway Administration to convert the unmanned level crossing No.15 at KM 24/10-11 to that of a manned level crossing. There is no doubt, level crossing shall be the exclusive property of the Government and the licencee shall not claim or acquire any right on account of having paid the cost of work. There is no doubt, level crossing shall be the exclusive property of the Government and the licencee shall not claim or acquire any right on account of having paid the cost of work. But, the respondents have themselves admitted that in Madurai Division, during the financial year 2004-05, three level crossing gate accidents have taken place and two lives were lost, including the properties of people using the unmanned level crossing. That during 2005-06 and till the date of filing of the additional Counter Affidavit, three level crossing gate accidents have also taken place and three precious lives and properties of the people were lost. The respondents have further admitted that the track is heavily engaged and in the inertest of the safety of public, the speed restriction for important trains at 50 kmph have to be imposed, as against the permissible speed of 100 kmph on the disputed Section. It is also the case of the respondents that travelling time taken by the trains has been increased and it has caused inconvenience to the passengers and therefore, in the interest of the public and traveling passengers, Railway administration has directed the petitioner, using the unmanned level crossing gate to deposit the requisite charges to convert the same as manned level crossing. 141. The Circular No.2003/CE-I/LX/59 of the Government of India, Ministry of Railways (Railway Board), dated 26. 2006, addressed to all the Officers of the Railways, speaks of the certain amendments made to Indian Railways Permanent Way Manual. The existing sub-para (b)(i) of Paragraph 924 has been directed to be replaced as follows: “924(b)(i) Based on traffic density, visibility and regular plying of buses etc., unmanned level crossings have been, categories into I-III for manning at Railways cost in a phased manner on a programmed basis as per following priority: Category I- Level crossing where TVUs exceed 6000, number of road vehicles exceed 180 and where visibility is clear. Category II – Level crossing where TVUs exceed 6000, number of road vehicles exceed120 and where visibility is restricted. Category III –Level Crossing where TVUs is between 3000 and 6000 and where visibility is restricted. Further, manning of any unmanned level crossing shall not be done if motor vehicles do not ply regularly. Manning of category-III level crossings should be considered once manning of first two categories is over. Category III –Level Crossing where TVUs is between 3000 and 6000 and where visibility is restricted. Further, manning of any unmanned level crossing shall not be done if motor vehicles do not ply regularly. Manning of category-III level crossings should be considered once manning of first two categories is over. Further, if any unmanned level crossings get involved in more than 3 accidents in 3 years, it should be manned immediately irrespective of the category to which it belongs.” 42. Reading of the circular shows that there are three categories of unmanned level crossings. In the case on hand, there is free access to vehicular traffic and pedestrians. As per the Manual, if an unmanned level crossing gate involve in more than three accidents in three years, it should be manned immediately irrespective of the category to which it belongs. Reading of the counter affidavit makes it clear that the Railway Administration, on their own, has taken a decision to convert the unmanned level crossing No. 15 at KM 24/10-11 to that of a manned level crossing. The next question is who should pay the cost of work. As per Clause 14 of the agreement, if at a later date, the provision of gates and gate keepers to man the gates, is found necessary as a precautionary measure, the licencees should agree to bear the charges, both recurring and non-recurring due on this account. In the case on hand, the licencee is not willing to pay, but has preferred to remove the gates and use the level crossing, by continuing to make payments, as agreed upon and revised from time to time. 43. Time and again, the Supreme Court as well as other Courts have reiterated that a public duty is cast upon Railways to give protection, not only to the passengers as well as to those persons, using level crossings. Useful reference can be made to few decisions. 44. In Union of India v. Lalman Badri Prasad AIR 1954 Vindh Pra 17, the learned Judicial Commissioner has observer as follows: “A level crossing is on the one hand a danger spot in view of the possible movement of trains, and on the other is an invitation to the passerby. This is a public crossing and not merely one by private accommodation. Therefore it is the legal duty of the railway to assure reasonable safety. This is a public crossing and not merely one by private accommodation. Therefore it is the legal duty of the railway to assure reasonable safety. The most obvious way of doing it is to provide gates or chain barriers and to post a watchman who should close them shortly before the trains pass. But failure to do so is not by itself an act of negligence provided that the railway had taken other steps sufficient in those circumstances to caution effectively a passerby of average alertness and prudence. At a reasonable distance on either side, prominently written boards can be affixed, asking the road-users to beware of trains. If the track on either side is visible from near the caution board or within a short distance from the crossing, this would be sufficient because a diligent road-user could look round and see the train. On the other hand, if there is a bend on the track or there are trees or bush in between, or the road on either side of the crossing is very far below the level of the railway track, or for any other similar reasons the track is not visible beyond a short distance, then even the caution boards are useless. In that case gates are indicated. Similarly boards may be affixed along the railway, say half to three-fourth of a mile in either direction calling upon the engine driver to whistle. A whistle by the driver can supplement, but cannot replace gates or caution boards as a device to protect the users of a crossing.” On the facts of that case the learned Judicial Commissioner found that there was negligence on the part of the railway in the maintenance of the level crossing and that having opened an unmanned crossing without any barrier, the railway did not take all the necessary steps to safeguard the users.” .45. In Swarnalata v. Union of India AIR 1963 Assam 117, wherein it was observed as under, .“We are clearly of opinion that there is an obligation on the part of the railway company or administration to ensure that whenever the railway passes over a thoroughfare adequate warning should be given to the public of the passing of the trains at the time they pass so that accidents may be avoided. This duty need not necessarily be a statutory. This duty need not necessarily be a statutory. It is implied and inherent in the functions to be discharged by the Railway Administration in the matter of running their Railways. There is no doubt and it is not disputed that had the Railway Administration taken the precaution of either putting up a railway gate and keeping it closed at the time the train was due to pass or put up some other obstruction which could prevent the public from passing over the level crossing giving them information and notice of the approaching train, the accident of the kind that happened in this case could not occur.” .46. In Union of India v. United Insurance Company AIR 1998 SC 640 : (1997) 8 SCC 683 , the Supreme Court had an occasion to consider the duties of diver and conductor of Motor Vehicles at an unmanned railway level crossing. The Supreme Court also considered the duties of Railways under Section 13 of the Indian Railways Act. At Paragraphs 15 and 16, the Supreme Court, held that, .“As regards the nature of duty of the Railways at level-crossings from time to time it has been stated by the Privy Council in Commr., for Rlys. V. Mc.Dermott that the Railways’ duty of care at common law is based on the principle of neighbourhood laid down in Donoghue v. Stevenson by Lord ATKIN who said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” The duty to care at common law is based upon the dangerous or perilous nature of the operation of the Railways. The test of breach of common law duty is again the test of a reasonable or prudent person in the particular fact situation-of course the amount of care, skill, diligence or the like, varying according to the circumstances of the particular case. The standard of foresight is again that of a reasonable person. Such a person is also expected to take into account common negligence in human behavior. Of course, he need not anticipate folly in all its forms. The standard of foresight is again that of a reasonable person. Such a person is also expected to take into account common negligence in human behavior. Of course, he need not anticipate folly in all its forms. Because the Railways are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care, on the “neighbourhood” principle – even if the provisions in Section 13(c) and (d) of the Railways Act, 1890 are not attracted for want of requisition by the Central Government.” .47. The Supreme Court has further observed that it is the common law duty of Railway to take notice of the increase in the volume of railway and motor traffic at the unmanned level crossing and to take adequate steps such as putting up gates with a watchman so as to prevent accidents at such a point. The Supreme Court further observed that, .“Running of trains by Railways has been recognised as inherently perilous and certainly creates, in the minds of the public a general expectation that safety measures-which the public cannot otherwise afford, have been taken by the Railways Administration. The steps mentioned by the legislature in the various clauses of Section 13 of the Railways Act, 1890 are steps which, even according to the legislature, individual members of the society cannot afford to take and are capable of taking, having regard to the expense or expertise involve or for the reason that these steps have to be taken in or in respect of the property of the Railways.” 48. In the light of the above and having regard to the decision taken by the Railway administration to convert the unmanned level crossing to that of manned level crossing at KM 24/10-11 and to provide gates, the impugned order, directing the petitioner to approach the Railways within seven days for manning level crossing and on failure, converting the same into that of pedestrian crossing, is arbitrary and liable to be set aside. Accordingly, it is set aside. The petitioner cannot be forced to pay AMC, when they had removed gates. Photographs produced before this Court shows that the gates put up by the petitioner had already been removed. Accordingly, it is set aside. The petitioner cannot be forced to pay AMC, when they had removed gates. Photographs produced before this Court shows that the gates put up by the petitioner had already been removed. As Railways have got a public duty to man all the level crossings, necessary steps may be taken to provide gates and gate keeper at the level crossing No. 15, as per the decision of the Supreme Courts, as expeditiously as possible. 49. In the result, the writ petition is allowed. No costs. Petition allowed.